Team Code – 35

RAFFLES UNIVERSITY INTRA MOOT COURT COMPETITION

2020

IN THE HON’BLE HIGH COURT OF RENAC

Civil Appellate Jurisdiction

Civil Appeal No. _ Of 2020

In The Matter Between

Dr. Andrew Holland ….Appellants

v.

Mr. .Jacob Smith ….Rrespondent

MEMORANDUM ON BEHALF OF THE APPELLANT

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 TABLE OF CONTENT

1.TABLE OF CONTENT

2.LIST OF ABBREVIATION

3.INDEX OF AUTHORITIES

4.STATEMENT OF JURISDICTION

5.STATEMENT OF FACTS

6.STATEMENT OF ISSUES

7.SUMMARY OF ARGUMENTS

8.ARGUMENTS ADVANCED

1. Whether the appeal is maintainable in the eyes of Law or not?

2. Whether Surender Sharma, Vijender Singh and Nishant Dikshit are rightly implicated
for murder of Yugal?
3. Whether Surender Sharma is rightly prosecuted and sentenced for the murder of
Yugal?
4. Whether the above said case falls within the parameters of the rarest of the rare case?

9.PRAYER

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 LIST OF ABBREVIATIONS

AIR All India Report

Anr. Another
& And
Bom. Bombay
CPC Code of Civil Procedure
Ed. Edition
Etc. Etcetera
Hon’ble Honorable
i.e. That Is
JT Judgements Today
LJ. Law Journal
Ors. Others
R/W Read With
Sec. Section
v. Versus
SC Supreme Court
SCC Supreme Court Cases
UOI. Union Of India
U/S Under Section

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 INDEX OF AUTHORITIES

BOOKS

1. Law of Torts- Dr. R.K. Bangia

2. The Law of Torts- Ratanlal & Dhirajlal

CASES

1. Grant v. Australian Knitting Mills Ltd.,  HCA 35, (1933) 50 CLR 387.
2. Jacob Mathew v. State of Punjab, 2005(III)CPR 70(SC) 2.
3. Municipal Corporation of Delhi v. Subhagwanti,  AIR 1966 SC 1750.
4. Joseph V. George Moonjely,  AIR 1994 Ker 289.
5. The Municiplal Corporation Of Greater Bombay V. Shri Laxman Iyer and Anr.
(2003) 8 SCC 731
6. Byrne vs Boadle,  2 H. & C. 722, 159 Eng. Rep. 299 (Exch. 1863).

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 STATEMENT OF JURISDICTION

The Appellant seeks the honour to submit before the Hon’ble High Court of Renac the
Memorandum of Appellant under Sec. 96(1)1 of Civil Procedure Code (1908).

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SECTION 96(1) OF CIVIL PROCEDURE CODE , 1908

96.Appeal from original decree.-(1) Save where otherwise expressly provided in the body of this Code or by
any other law for the time being in force,an appeal shall lie from every decree passed by any Court exercising
original jurisdiction to the Court authorized o hear appeals from the decisions of such court.

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 STATEMENT OF FACTS

1. Jacob Smith, is a 50 years old plaintiff who suffers from a particular type of cancer
known as non-Hodgkin lymphoma(cancer that starts in the lymphatic system, the
condition occurs when the body produces too many abnormal lymphocytes, a type of
white blood cells).
2. In the beginning it was presented as a substantial lump in his right armpit. Firstly the
matter was brought up to his general practitioner in July 2016. Due to constant
reminder of his wife that he should consult a doctor, although symptoms were
manifested atleast 18 months prior to taking up the matter to the defendant Dr.
Andrew Holland who was a medical practitioner, registered as a general practitioner
in Queensland. Dr. Holland can be described as Mr. Smith’s ‘regular doctor’,
although that should be viewed in the light of Dr. Holland’s records, which showed
that Mr. Smith attended Dr. Holland’s surgeries infrequently.
3. On first consultation with Dr. Holland about the lump, he considered that it was a
lipoma- that is a benign collection collection of fatty tissue. Having made this
diagnosis Dr. Holland did not refer him to a specialist for confirmation or otherwise
of his diagnosis. Six months after his consultation with Dr. Holland, Mr. Smith moved
from Sunnyland to another city named Renac, which made it inconvenient to continue
his consultation with Dr. Holland.in August 2017, MR. Smith saw his new general
practitioner (Dr. Anushka Patel) who concurred that the lump was probably a lipoma,
but out of caution she referred him to Princess Alexandria Hospital (PAH) in Warlong
city on non-urgent basis.
4. The referral recorded gradual enlargement of the lump with increased pain and
discomfort since Mr. Smith first noticed the lump. The consultant who examined Mr
Smith on his referral had the suspicion that the lump was in fact not benign and
arranged for a biopsy. Some four days later, biopsy confirmed that the lump was in
fact a “lymphoma”. The narrowed diagnosis eventually discovered it as non-
Hodgkin’s lymphoma.
5. In December 2017 the CT scan did not show any signs of the disease being spread
into any other organ. He was admitted to PAH on 26 th January 2018 due to intense

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 chest pain. On further examination it was found that this was a result of lymphoma
having spread into his left thorax.
6. Chemotherapy was arranged on six occasions followed by radiotherapy. Which the
tumour did not respond completely. On further investigation, it was decided that he
will be subjected to high dose of chemotherapy and was discharged in early
September 2018.
7. In November 2018, Mr. Smith’s condition got worse and suffered a relapse due to
development of a tumour in his right axilla which eventually resulted in poor medical
condition. The was that the chemotherapy he was then given was intended merely as
palliative. He was told that he could be “cured”, and cured here meant a period of
remission of at least ten years.
8. The result of all the treatment was that , he had major side effect on his body due to
which his life became disastrous. As a consequence he had to give up his work in
august 2018 as he felt weak and was lacking energy.
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 court said that Dr. Holland could have referred him to a specialist doctor as it
would not have been resulted into bad medical condition and low life expectancy of
Mr. Smith.
11. Though the court stated that contributory negligence has happened on Mr. Smith’s
part as, he delayed medical attention as he got to know the symptoms 18 months prior
to his first consultation with Dr. Holland and in this day, it is expected by an
individual to take adequate care of his own and seek medical attention on time.
12. Therefore this delay on the side of plaintiff(Smith) resulted in the reduction of 35% in
the damages.

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 STATEEMENT OF ISSUES

ISSUE 1.

Whether Dr. Holland is liable for the reduction of life expectancy of Mr. Smith?

ISSUE 2.

Whether Mr. Smith is entitled to compensation

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 SUMMARY OF ARGUMENTS

ISSUE 1-

Whether Dr. Holland is liable for reduction of life expectancy of Mr. Smith?

It is humbly contended before the Hon’ble High Court that Dr. Holland is not liable for the
reduction of Mr. Smith’s life expectancy. The aforesaid contention holds ground because the
essentials of negligence are not fulfilled and Dr. Holland performed his duty carefully and
professionally while dealing with Mr. Smith ‘s lump. In fact it was Mr. Smith’s negligence,
as it is evident by his irresponsible behavior towards himself and his health because he failed
to seek medical attention on time even the symptoms of lump were manifested 18 months
prior to his consultation with Dr. Holland.

ISSUE 2.

Whether Dr. Holland is entitled to compensate Mr. Smith?

It is humbly contended before the Hon’ble High Court that Dr. Holland is not entitled to pay
any compensation to Mr. Smith. As Mr. Smith, himself was negligent on his part in
approaching medical attention, whereas Dr. Holland performed his duty properly. As it is
evident by his irregularity in visiting his regular doctor for the consultations and surgeries ,
also in proper administration of the prescribed treatment.

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 ARGUEMENT ADVANCE

ISSUE 1-

Whether Dr. Holland is liable for reduction of life expectancy of Mr. Smith?

It is humbly submitted that the appeal possess substantial question of law which warrants the
application of mind by High Court. The appellant has the locus standi to appear before the
court claiming that Dr. Holland is not liable for reduction of Mr. Smith’s life expectancy.

It is humbly contended, before the Hon’ble Court that there was negligence on the part of the
Mr. Smith as, Negligence under common law of Ranvicore states that:

“Negligence is the state of mind of under indifference towards one’s conduct and its
consequences.” – Salmond.

The above mentioned definition of negligence by Salmond consists of the following

essentials, which are necessary to be fulfilled in order to constitute Common Law of
negligence:

1. Duty to take care.

2. Breach of that duty.
3. Consequential damage.

A breach of any of the above mentioned duties gives a right of action for negligence to the
patient. In the current scenario, Dr. Holland, while dealing with the case of Mr. Smith, he
took it into reasonable consideration and dealt with it taking all due care a professional of
medical field is supposed to take. Not every general practitioner , in all cases, refer every
lump for further examination. “From a retailer, the plaintiff purchases two sets of woolen
underwear. After wearing it, he suffers from a  skin disease. This problem occurs due to the
excess amount of sulphates present in the wool and not removing it at the time of washing it due
to the negligence at the time of washing it. In this case, the manufacturers are completely liable as
they are not able to perform their duty correctly2”. Such a decision by Dr. Holland was an

2
Grant v. Australian Knitting Mills Ltd.,  HCA 35, (1933) 50 CLR 387.

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exercise in clinical judgement, here it shows that the first essential of negligence is not
fulfilled.

Also, According to Charlesworth & Percy 3 Negligence, in current forensic speech,

negligence has three meanings. These are :

1. A state of mind, in which it is opposed to intention,

2. Careless conduct, and
3. The breach of duty to take care that is imposed by either common or statute law.

In the current situation, none of the above mentioned meanings of negligence are satisfied, as
we can clearly see that there was no bad intension behind the conduct of Dr. Holland while he
dealt with Mr. Smith’s lump. Also he did his job of treating Mr. Smith with all due care as
per his medical profession, so his conduct of treatment was not careless, in fact Mr. Smith
himself was careless on his part as he delayed 18 months in seeking medical attention which
resulted in his severely affected health by the end of November 2018. From the above
mentioned arguments it is also established that there was no breach of duty on the part of Dr.
Holland to take care of his patient while treating them.

Also there was no breach of duty on part of Dr. Holland just because an alternative course of
action would have lead the situation to another results. Dr. Holland has not breached his duty
to take care merely because he chose one course of action in preference to the other one. “a
number of persons died due the collapsing of a clock-tower in the heart of the Chandni Chowk,
Delhi. The normal life of such structures are normally 40-45 years but the tower was around 80
years old. The Municipal Corporation of Delhi is held liable as it is under their hands and they
are not able to take care and perform their duties efficiently.”4

The third essential here is the damages suffered by Mr. Smith, in other words the reduced life
expectancy was a result of his own careless behavior towards himself, as he consulted a
doctor after 18 months of the symptom’s occurrence and his irregularity or infrequency in
consulting his regular doctor. “The Kerela high court awarded damages amounting to Rs

3
Quoted in Jacob Mathew v. State of Punjab, 2005(III)CPR 70(SC) 2.
4
Municipal Corporation of Delhi v. Subhagwanti,  AIR 1966 SC 1750.

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1,60,000 against a surgeon for performing an operation on a 24-year-old girl without
following proper medical procedures and not even administering local anaesthesia.5”

Another important point to note here is that the Doctors dealing with Mr. Smith at the
Princess Alexandria Hospital had the last chance to avoid the consequential damages suffered
by Mr. Smith. According to the last opportunity rule in common law negligence says that the
one who has last chance to avoid consequential damages and he fails to avoid, is the one
liable for the same. “ Hon'ble Apex Court has referred to the doctrine of last opportunity.
Underlying principle of the doctrine is that when both parties are careless, party which has
the last opportunity of avoiding the result of other's carelessness alone is liable.”6

Mr. Smith would have had 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 Mr. Smith was because of the delay meant his initial chance of
remission would have fallen to around 35% and his chance of overall survival moves from
over 45% to approximately 30%. As per “BUT FOR RULE”, Mr. Smith already had a
remission chance which is below 50% and it reduced to 30% due to the delay caused by Mr.
Smith himself. Hence forth Dr. Holland would not be held liable for the reduction of his life
expectancy.

Furthermore, I request the Hon’ble Court to quash the findings of Lower Court on the
grounds of above mentioned arguments.

5
Joseph V. George Moonjely,  AIR 1994 Ker 289.
6
The Municiplal Corporation Of Greater Bombay V. Shri Laxman Iyer and Anr. (2003) 8 SCC 731.

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ISSUE 2.

Whether Dr. Holland is entitled to compensate Mr. Smith?

With respect to the particular issue, counsel humbly submits that the findings of the lower
court states that Dr. Holland is liable as set out and liable to compensate Mr. Smith around
$185000 plus $24674, in interest under the appropriate scales. The findings of the Lower
Court must be set aside further, the awarded compensation must be rejected.

Mr. Smith himself delayed seeking any form of medical diagnosis or treatment for a period,
on his own evidence, of 18 months, and in the face of considerable encouragement from his
wife to “have it looked at” went for consultation to Dr. Holland. The facts of the case are very
clear on the part that Mr. Smith on this day and age, it is not unreasonable to expect that an
individual will take adequate care of their own health, and seek medical opinion when
appropriate. The council humbly concurred with the Lower Court that Mr. Smith’s delay in
seeing Dr. Holland was, itself was a material contributor to the development of the disease.

Moreover, the maxim “Res ipsa loquitur” also clearifies that Dr. Holland is not responsible
for the reduced life expectancy of Mr. Smith as it is clearly defined as :

“Res ipsa loquitur is a Latin phrase that means “the thing speaks for itself.”
It is considered to be a type of circumstantial evidence which permits the court to determine
that the negligence of the defendant led to an unusual event that subsequently caused injury
to the plaintiff. Although generally the duty to prove that the defendant acted negligently lies
upon the plaintiff but through res ipsa loquitur, if the plaintiff presents certain circumstantial
facts, it becomes the burden of the defendant to prove that he was not negligent.”

This doctrine arose out of the case of  Byrne vs Boadle(1863)

“The plaintiff was walking by a warehouse on the road and suffered injuries from a falling
barrel of flour which rolled out of a window from the second floor. At the trial, the plaintiff’s
attorney argued that the facts spoke for themselves and demonstrated the warehouse’s
negligence since no other explanation could account for the cause of the plaintiff’s injuries”.7

7
 2 H. & C. 722, 159 Eng. Rep. 299 (Exch. 1863).

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Thus in the following case, the delay of 18 months caused by Mr. Smith was in itself
sufficient to show the negligent behaviour on part of Mr. Smith towards his treatment, hence
Res ipsa loquitur well applies here.

In the land mark judgement of the Case Gregg v. Scott, it was dissented by the minority
( Lord Nicholas) :

"This is the type of case under consideration. A patient is suffering from cancer. His
prospects are uncertain. He has a 45% chance of recovery. Unfortunately his doctor
negligently misdiagnoses his condition as benign. So the necessary treatment is delayed for
months. As a result the patient's prospects of recovery become nil or almost nil. Has the
patient a claim for damages against the doctor? No, the House was told. The patient could
recover damages if his initial prospects of recovery had been more than 50%. But because
they were less than 50% he can recover nothing.”

 In reference to the said case, Dr. Holland is nowhere liable to compensate Mr. Smith as his
chances of recovery were approximately 45% and the same was reduced to 35% because of
the delay in seeking medical attention at first instance, which is less than 50% just like the
above mentioned case.

Moreover, Doctors dealing with Mr. Smith at the Princess Alexandria Hospital had the last
chance to avoid the consequential damages suffered by Mr. Smith. According to the last
opportunity rule in common law negligence says, that the one who has last chance to avoid
consequential damages and he fails to avoid, is the one liable for the same. “ Hon'ble Apex
Court has referred to the doctrine of last opportunity. Underlying principle of the doctrine is
that when both parties are careless, party which has the last opportunity of avoiding the result
of other's carelessness alone is liable.”8 So they are the ones liable to compensate Mr. Smith
not Dr. Holland.

In the light of above mentioned reasons it is humbly sumitted that Dr. Holland is not liable to
pay compensation.

8
Supra note: The Municiplal Corporation Of Greater Bombay V. Shri Laxman Iyer and Anr. (2003) 8 SCC 731.

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PRAYER

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Wherefore in the light of facts stated, issues raised, authorities cited and arguments advanced,
it is most humbly prayed that this Hon’ble High Court may be pleased to hold that:

1. Dr. Holland is not liable for reduction in Mr. Smith’s life expectancy.

2. Dr. Holland is not entitled to compensate Mr. Smith?

And pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equality and Good Conscience.
For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.

The Appellants

Sd/-

……………………………
(Counsel for the “Appellants”)

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