RAFFLES UNIVERSITY INTRA MOOT COURT COMPETITION, 2020 T.

C-02
TEAM CODE: 02

IN THE HON’BLE COURT OF RENAC

IN THE MATTER BETWEEN

Dr.Holland ......Appellant

v.

Mr. Smith .......Respondent

MEMORANDUM ON THE BEHALF OF RESPONDANT

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Table of Contents

 LIST OF ABBRIVIATIONS…………………………………………. [3]

 INDEX OF AUTHORITIES………………………………………….. [4]

 STATEMENT OF JURSIDICTION………………………………… [5]

 STATEMENT OF FACT……………………………………………... [6-7]

 STATEMENT OF ISSUE…………………………………………….. [8]

 SUMMARY OF ARGUMENTS……………………………………… [9-10]

 ARGUMENTS ADVANCED…………………………………………. [11-14]

 PRAYER……………………………………………………………….. [15]

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ABBRIVIATION

V. Versus
Thf. Therefore
& and
HC High Court
Hon’ble Honourable
Ors Others
i.e. That Is
SCC Supreme Court Cases
SC Supreme Court
Org. Organisation
Opp. Opposite
AP Andhra Pradesh
UP Uttar Pradesh

INDEX OF AUTHORITIES

Donoghue v. Stevenson (1982) AC

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562

Narasimha Rao (Dr.) v.Gundaverpu Jayaprakahshan, AIR 1990 AP

207

Graut v. Australian Knittiing Mills (1936) AC 85-

103.

Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole AIR 1969 SC
128

A.S.Mittal v. State of U.P AIR 1989 SC

1570

Book Referred ;

1. Law of Torts, Dr. R.K Bangia, 23rd Edition.

Research Portal;

1. www.scconline.com ;

STATEMENT OF JURISDICTION

The counsel for the respondent humbly submits to the jurisdiction to the honourable court
in response to the appellant submission.

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Sec 21 of CPA 1986 posits that the national consumer shall have the jusrisdiction to
entertain a complaint valued more than one 1cr. And also have appellant and revisional
jurisdiction from the order of state commission or the district fora as the case may be

STATEMENT OF FACTS

1. Jacob smith is the 50 years old plaintiff who suffers from a particular type of cancer
known as non-Hodgkinlymphoma(cancer that starts in WBC and weakens our
immune system).

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2. In the beginning his condition was presented as a substantial lump under his right
arm. First the medical condition came into existence in July 2016 .It must be said
that symptoms were exhibited 18 months earlier before taking up matter to his
general practitioner who lives in Queensland the defendant Dr Holland (“regular
doctor”).Smith often attended Dr Holland surgeryseccions infrequently .Dr Holland
considered smith initial condition as lymphoma(collection of fatty tissue).
3. After consulting Dr. Holland 6 months later smith moved to city renac, due to
facing inconvience in treatment provided by defendant .Smith consulted another
general practitioner(DrAnushka Patel)who also found that it’s a lump and said it
probably may be “lipoma” but in August2017 referred him to Princess Alexandria
Hospital on non-urgent basis for his lump.
4. Where the consultant who examined smith arranged biopsy(removal of tissue from
human body)urgently. Then after four days he confirmed that this is an lump that
eventually turned into non-Hodgkin lymphoma.
5. In December 2017 the CT scan did not showed any signs that the disease is
spreading throughout his body. He was then again admitted to PAH on 26 th January
2018 with intense chest pain. On further examination it was found that this was a
result of spread of lymphoma into his body.
6. Chemotherapy was arranged on six occasions followed by radiotherapy. Which the
body did not responded. Further it was decided that he will be subjected to high
dose of chemotherapy for harvesting of his stem cells.
7. In November 2018 smith condition got worse he developed a tumour in the right
axilla which eventually resulted in poor medical condition ,further he was told that
he would not recover or can be said “cured” as the disease became incurable.
8. The result of all of the original treatment was that, he had major side effect on his
body due to which his life became disastrous. As a consequence he had to gaveup
his work in august 2018.
9. Mr. Smith then filed the claim against the defendant under medical negligence and
demanded $185,000 plus $24,674 in interest for quantum of damages.
10. The reasonable defence given on the part of defendant was that of a minor lump a
general practitioner would not refer the patient to a specialist. But the court said that
this defence would not cover his negligence as his acts would have led to different
outcomes.

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11. The expert evidence from Professor Stanhope cannot be denied that the delay in the
right treatment have led to poor medical condition on Mr. Smith and the chances of
resubmission just remained 35%. The chances of survival of plaintiff just moved to
30% from 45% just because of delay.
12. The court said that DrHolland could have referred to a specialist doctor to smith as
it would not have been resulted into bad medical condition. In January 2018 smith
suffered relapse and then had to undergo radical chemotherapy and in November
2018 the disease became incurable which led to reduction in the life expectancy rate
of Mr. Smith as stated above.
13. Though the court also stated that contributory negligence has happened,as Smith
delayed medical diagnoses as he got to know the symptoms 18 months prior and it
is not expected by an individual to take adequate care for an individualand he
himself is a contributor.
14. Therefore this delay on the side of plaintiff(Smith) side made him negligent too and
thf. the compensation was reduced by 35%.

STATEMENT OF ISSUES

ISSUE

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1: Whether Dr HOLLAND is liable for medical negligence or not?

2: Whether Smith is liable for contributory negligence or not?

SUMMARY OF ARGUMENTS

1. Whether Dr HOLLAND is liable for medical negligence or not?

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It is humbly submitted before the hon’ble high court that Dr Holland is liable for medical
negligence because he did not performed his duty when Mr. Smith first presented to him
and asked about the lump. Dr Holland considered that it was a lipoma i.e. a kind of
benign collection of fatty tissue. Having made that diagnosis, Dr Holland did not refer
him to specialist for confirmation or otherwise of his diagnosis due to which the disease
spread throughout his body and his life expectancy also decreased. As

“No doctor knows everything. There is reason why it’s called ‘practising’ medicine1.”

To err is human. Though patients see the doctors as God and believe that there disease
will be healed by the treatment but sometimes even the doctor makes mistakes which can
cost a lot to the patient in many ways. Sometimes the mistake is so dangerous that the
patient has to suffer immensely. So on this reasonable ground Dr Holland is liable for the
medical negligence.

2. Whether Smith is liable for contributory negligence or not?

It is humbly submitted before the hon’ble high court that Smith is not liable for contributory
negligence because he has completely fulfilled his duties as prescribed by Dr Holland and
after consulting him it is the duty and authority of Dr Holland give right directions to Smith
so that he can be free from his disease. If Smith has done some negligent act after
prescribed Dr Holland then it may be considered as contributory negligence. So Smith is
liable to get compensation as decided in the quantum of this facts. Also voluntary
assumption taken by Dr Holland not to consult with specialist is also negligent step. Hence
Smith is not liable for contributory negligence.

ARGUMENT ADVANCED

1. Whether Dr HOLLAND is liable for medical negligence or not?

1
Lawctopus.com/academike/medical-negligence/

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It is humbly submitted before the hon’ble high court that Dr Holland is liable for medical
negligence because he did not performed his duty when In July 2016, Smith finally went
to see the respondent, Dr Andrew Holland, who was a medical practitioner, registered as
a general practitioner in Queensland. Dr Holland was what might be described as Smith’s
“regular doctor”, although that should be viewed in the light of Dr Holland’s records,
which showed that Mr Smith attended only infrequently at Dr Holland’s surgery. When
Mr. Smith first presented to Dr Holland and asked about the lump,

Dr Holland considered that it was a lipoma - that is a benign collection of fatty tissue.
Having made that diagnosis, Dr Holland did not refer him to a specialist for confirmation
or otherwise of his diagnosis.

due to which the disease spread throughout his body and his life expectancy also
decreased

“No doctor knows everything. There is reason why it’s called ‘practising’ medicine.”2

To err is human. Though patients see the doctors as God and believe that there disease
will be healed by the treatment but sometimes even the doctor makes mistakes which can
cost a lot to the patient in many ways. Sometimes the mistake is so dangerous that the
patient has to suffer immensely. So on this reasonable ground Dr Holland is liable for the
medical negligence.

And first of all what is negligence?

Negligence constitute an independent basis of tort liability. 3 It means it creates a risk of

causing damage rather the state of mind. The house of lords in the case Donoghue v.
Stevenson4, stated that the law ‘treats negligence, where there is duty to take care, as
specific tort in itself, and not simply as an element is some more complex relationship or
in specialised breach of duty.5

Medical Negligence means the failure to exercise reasonable skill as per the general
standards and prevalent situations is called as medical negligence.

2
Lawctopus.com/academike/medical-negligence/
3
Narasimha Rao (Dr.) v.Gundaverpu Jayaprakahshan, AIR 1990 AP 207.
4
(1982) AC 562.
5
Graut v. Australian Knittiing Mills (1936) AC 85-103.

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It was also defined as want of reasonable degree of care and skill or willful negligence on
the part of medical practitioners in the treatment of a patient with whom relationship of
professional attendants established so as to lead to his bodily injury or permanent
disability or loss of life. In order to prove negligence the aggrieved consumer must be
prove following ingredients before the court.

1. The doctor breached the duty of care,

2. The doctor owed him duty of care of a particular standard of professional conduct,

3. The patient (Plaintiff) has suffered any injury due to his breach and cause actual
damage and the doctor’s conduct was directly and approximate cause damage

Doctor owes certain duties to the patients who consult him for illness or not feeling well,
deficiency in his duty results in negligence.

Breach of duty means omitting to do something, which a reasonable doctor would do or

being something that a reasonable doctor would not do, even if there is injury, the injury
must be the proximate and direct result of breach of duty. It is now well-established fact
that hospital and doctor providing medical service are covered under the Consumer
Protection Act, 1986.

In the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole6 and
A.S.Mittal v. State of U.P7, it was laid down that when a doctor is consulted by a patient,
the doctor owes to his patient certain duties which are:

(a) duty of care in deciding whether to undertake the case,

(b) duty of care in deciding what treatment to give, and

(c) duty of care in the administration of that treatment.

A breach of any of the above duties may give a cause of action for negligence and the
patient may on that basis recover damages from his doctor

6
AIR 1969 SC 128
7
AIR 1989 SC 1570,

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So this conclude as relevant with the facts mentioned above that due to negligent step of Dr
Holland Smith’s life get in danger and just because of it he had loose a remission chance of
approximately 45% and a similar chance of disease free survival for ten years. For such a
patient, the addition of the adverse prognostic factors that came to affect him because of the
delay meant his initial chance of remission would have fallen to around 35% and his
chances of overall survival moved from over 45% to approximately 30%.

So Dr. Holland is liable for the medical negligence.

2. Whether Smith is liable for contributory negligence or not?

It is humbly submitted before the hon’ble high court that Smith is not liable for
contributory negligence because he has completely fulfilled his duties as prescribed by

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Dr Holland and after consulting him it is the duty and authority of Dr Holland give right
directions to Smith so that he can be free from his disease.

If Smith has done some negligent act after prescribed Dr Holland then it may be
considered as contributory negligence. So Smith is liable to get compensation as
decided in the quantum of this facts.

Also voluntary assumption taken by Dr Holland not to consult with specialist is also
negligent step. Hence Smith is not liable for contributory negligence.

Firstly what is contributory negligence?

Contributory negligence is the plaintiff's failure to exercise reasonable care for their
safety. This universal law rule can bar recovery or reduce the amount of compensation a
plaintiff receives if their actions increased the likelihood that an incident occurred.
Often, defendants use contributory negligence as a defense.8

In the contributory negligence Smith is not liable as he had completely fulfilled his
duties and took care after the prescription given by Dr Holland.

If Smith has done some negligent act after prescribed Dr Holland then it may be
considered as contributory negligence.

Hence Smith is entitled to get compensation...

PRAYER

Wherefore in the light of argument advanced and authorities citied, the respondent
humbly submits that the honourable court may be pleased to adjudged and declare that

8
https://www.investopedia.com/terms/c/contributory-negligence.asp

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TO HOLD

1. The appellant is liable for the medical negligence.

2. The respondent is not liable for contributory negligence.
3. The respondent is entitled to get compensation.

And may pass,

MISCELLANEOUS

Any other order as it deems fit in the interest of justice, equity and good conscience.

For this act of Kindness, the respondent shall duty bound forever pray....

PLACE- Sd/-

(Counsel for the respondent)

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