INTRA MOOT COURT COMPETITION, 2020

TEAM CODE:17

BEFORE THE HON’BLE SUPREME COURT OF RANVICORA

IN THE MATTER OF:

DR. ANDREW HOLLAND ...APPELLANT

V.

MR. JACOB SMITH ...RESPONDENT

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF RANVICORA

WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT

COUNCEL APPEARING ON BEHALF OF THE APPELLANT

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TABLE OF CONTENTS

INDEX OF AUTHORITIES.................................................................................................................2
STATEMENT OF JURISDICTIONS...................................................................................................3
STATEMENTS OF FACTS..................................................................................................................4
STATEMENTS OF ISSUES.................................................................................................................6
SUMMARY OF ARGUMENTS...........................................................................................................7
ARGUMENTS ADVANCED...............................................................................................................8
1. WHETHER THE APPEAL UNDER SECTION 23 OF THE CONSUMER PROTECTION ACT,
1986 IS MAINTAINABLE AGAINST AN ORDER PASSED BY NATIONAL CONSUMER
DISPUTE REDRESSAL COMMISSION (NCDRC)?..........................................................................8
2. WHETHER THE FINDING OF THE TRIAL JUDGE WAS AN INCORRECT
APPLICATION OF THE LAW OF RANVICORA?........................................................................9
3. WHETHER MR. SMITH WAS NEGLIGENT OR NOT?......................................................11
PRAYER.............................................................................................................................................13

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INDEX OF AUTHORITIES

STATUTES

Consumer Protection Act, 1986…………………………………………………………

BOOK, ARTICLES, TREATISES

A. Law of Torts- R.K. Bhangia third edition, 2013

CASE

Jacob Mathew v. State of Punjab, A.I.R. 2005 S.C. 3180

Hucks v. Cole (1958) 118 New L.j. 469.

Eckersley v. Binnie (1988) 18 Con. L.R. 1, 79.

M/s Spring Meadows Hospital v. Harjot Ahluwalia (1998) 4 S.C.C 39.

Eckersley v. Binnie (1988) 18 Con. L.R. 1, 79.

Blyth v. birnigham water works co. (1856) 11 Ex-ch 781.

Municipal Corporation of Greater Bombay v. laxmaniyer, A.I.R 2003 S.C 4182

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INDEX OF ABBREVIATION

S.No. ABBREVIATION FULL FORM

1 & And
2 Anr. Another
3 Ors. Others
4 Dr. Doctor
5 HC High Court
6 Sec. Section
7 Hon Hon’ble
8 v. Versus
9 Bom. Bombay
10 Co. Company
11 Ltd Limited
12 CT scan Computed tomography scan
13 PAH Princess Alexendria Hospital
14 Acc. According
15 % Percentage
16 Cor. Corporation
17 A.I.R All India Reports

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STATEMENT OF JURISDICTIONS

The Appellant has approached the Hon’ble Supreme Court of Ranvicora by the virtue of
Section 23 of Consumer Protection Act1. By the virtue of the said Section the Appellants are
here to appeal before this Hon’ble Supreme Court of Ranvicora (same legal system as of
India).

1
Appeal.- any person, aggrieved by an order made by the national commission in exercise of its powers
conferred by sub-clause (i) of clause of (a) of section 21, may prefer an appeal against such order to the supreme
court within a period of thirty days from the date of the order.

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STATEMENTS OF FACTS

1. That the Jacob Smith is a 50 year old man. He suffers from a specific type of cancer
known as non-Hodgkin’s lymphoma.
2. That Mr. smith manifested first symptom itself atleast 18 months prior to his first
medical attention in July 2016. He spoke about it with his wife, who encouraged him
to visit to a doctor.
3. That Dr. Andrew Holland was a medical practitioner registered as a general
practitioner in Queensland. Mr. Smith attended only infrequently at Dr. Holland’s
surgery.
4. That Mr. Smith first presented to Dr. Holland & he considered that it was a lipoma -
that is a benign collection of fatty tissue.
5. That six months after consulting with Dr. Holland, Mr. smith moved from Sunnyland
to another city named as Renac & making it inconvenient to continue seeing Dr.
Holland.
6. That in August 2017, Mr. Smith saw his new general practitioner (Dr. Anushka Patel)
and raised the matter of lump with her.
7. That Dr. Patel concurred that the lump was “probably a lipoma” & referred him on a
non-urgent basis to the Princess Alexandria Hospital (PAH) in Warlong city for
further investigation.
8. That after referral recorder that there had been some gradual enlargement since Mr.
Smith noticed the lump, accompanied by increasing discomfort & pain in the
preceding year.
9. That the consultant who examined Mr. smith on this referral in November2017 , has
arranged the biopsy, confirmed that the lump was in fact, a lymphoma. Eventually to
non-Hodgkin’s lymphoma.
10. That A CT scan from early December 2017 did not show any signs of the disease
having spread to any other organs. However, on 26th January 2018, Mr Smithwas
admitted to PAH with intense chest pains & on investigation, resultof lymphoma
having spread into left thorax.
11. That it was therefore decided in the late August 2018 that smith was subjected to high
dose chemotherapy which was administered on 6 occassions & was then

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supplemented by a course of radiotherapy. This treatment took place at PAH & was
discharged in early September 2018.
12. That in November 2018, Mr. Smith suffered a relapse when he developed a tumour in
the right axilla. This resulted that the chemotherapy that he was then given was
intended merely a palliative. He was told that he could not be cured.
13. That he suffered severe side effects from the original treatment, in particular the high
dose chemotherapy treatment in August 2018. He had to give up work.
14. That the lower court has given that both the parties are contributory negligent but this
is not contested by Dr. Holland.
15. That Dr. Holland appeals in high court on basis that the decision of trial court was an
incorrect application of the law of Ranvicora (same legal system as of Indian) as
currently applied in the jurisdiction of Renac.

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STATEMENTS OF ISSUES

1. WHETHER THE APPEAL UNDER SECTION 23 OF THE CONSUMER

PROTECTION ACT, 1986 IS MAINTAINABLE AGAINST AN ORDER
PASSED BY NATIONAL CONSUMER DISPUTE REDRESSAL
COMMISSION (NCDRC)?
2. WHETHER THE FINDING OF THE TRIAL JUDGE WAS AN INCORRECT
APPLICATION OF THE LAW OF RANVICORA?

3. WHETHER MR. SMITH LIABLE FOR NEGLIGENCE?

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SUMMARY OF ARGUMENTS

1. WHETHER THE APPEAL UNDER SECTION 23 OF THE CONSUMER

PROTECTION ACT, 1986 IS MAINTAINABLE AGAINST AN ORDER
PASSED BY NATIONAL CONSUMER DISPUTE REDRESSAL
COMMISSION (NCDRC)?

The present case before the court is related to compensation of amount more than 1 Crore and
if a matter is of more than 1 crore than that matter shall be dealt by National Commission. So
in case if the party is aggrieved by the order of National Commission than he can directly
approach the Supreme Court under Section 23 of Consumer Protection Act 1986.

Here the matter is related to compensation which exceed the amount of 1 crore. So the
Supreme Court shall have jurisdiction to entertain the appeal by the appellant.

2. WHETHER THE FINDING OF THE TRIAL JUDGE WAS AN INCORRECT

APPLICATION OF THE LAW OF RANVICORA?

It is humbly submitted before this Hon’ble Supreme Court that this issue must be entertained
before this Hon’ble Court as there is no sufficient evidences that prove that Dr. Holland were
liable for the enlargement of disease of Mr. Smith. Even the clinical judgement has no error.

3. WHETHER MR. SMITH WAS NEGLIGENT OR NOT?

In the present case, it was a duty of care of smith towards his health in which he fails to do so
because“ if a person’s negligent act or omission was the proximate and immediate cause of
death, the fact that the person suffering injury was himself negligent and also contributed to
the accident or other circumstances by which the injury was caused would not afford a
defence to the other”.

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ARGUMENTS ADVANCED

1. WHETHER THE APPEAL UNDER SECTION 23 OF THE CONSUMER

PROTECTION ACT, 1986 IS MAINTAINABLE AGAINST AN ORDER
PASSED BY NATIONAL CONSUMER DISPUTE REDRESSAL
COMMISSION (NCDRC)?

It is humbly submitted, before the honourable bench the National Consumer Dispute
Redressal Commission (NCDRC) is the court and takes on any dispute where the appellants
claim for compensation exceeds the amount of 1 Crore rupees (same legal system as of
India). In the case before us the trial judge has imposed compensation of amount $185,000
(Rs.1,32,30,460) along with interest of $24,674 (Rs.17,64,585) on Dr. Holland for the alleged
negligence. As the amount concern was of more than 1 Crore the National Commission shall
have jurisdiction over it according to section 21 of the consumer protection act which says
“Jurisdiction of the National Commission. — Subject to the other provisions of this Act, the
National Commission shall have jurisdiction—

(a) to entertain—

(i) complaints where the value of the goods or services and compensation, if any,
claimed exceeds rupees one crore; and

(ii) appeals against the orders of any State Commission; and

  (b) to call for the records and pass appropriate orders in any consumer dispute which is
pending before or has been decided by any State Commission where it appears to the
National Commission that such State Commission has exercised a jurisdiction not vested in it
by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its
jurisdiction illegally or with material irregularity.”

So as the National Commission had jurisdiction to deal with the matter, so if the party is
aggrieved by the order of the commission than the party can appeal to the Supreme Court as
it is having jurisdiction under section 23 of consumer protection act 1986. It says- “Any
person, aggrieved by an order made by the National Commission in exercise of its powers

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conferred by sub-clause (i) of clause (a) of section 21, may prefer an appeal against such
order to the Supreme Court within a period of thirty days from the date of the order.” and,
therefore, an appeal by Dr. Holland under Section 23 of the Consumer Protection Act to
challenge such order(s) would lie before the Supreme Court of Ranvicora.

2. WHETHER THE FINDING OF THE TRIAL JUDGE WAS AN INCORRECT

APPLICATION OF THE LAW OF RANVICORA?

It is humbly submitted before the honourable court that the negligent on the part of Dr.
Holland applied by the trial judge was an incorrect application of law. Dr Andrew Holland,
who was a medical practitioner, registered as a general practitioner in Queensland has taken
reasonable degree of care that a body of evidence suggesting that Dr Holland’s decision not
to send Mr Smith for further investigation was in keeping with the conduct of a number of his
peers does not determine liability: such an attitude to diagnosis cannot be said to form the
basis of clinical practice which is acceptable, and sufficient to discharge the obligations
imposed on a doctor within the scope of his or her duty of care.2

The degree of skill and care required by a medical practitioner explained by Halsbury’s Laws
of England- “The practitioner must bring to his task a reasonable degree of care. Neither the
very highest nor a very low degree of care and competence, judged in the light of the
particular circumstance of each case, is what the law requires, and a person is not liable in
negligence because someone else of greater skill and knowledge would have prescribed
different treatment or operated in a different way; nor is he guilty of negligence if he has
acted in accordance with a practice accepted as proper by a responsible body of medical
men skilled in that particular art, even though a body of adverse opinion also existed among
medical men.”3

Hucks v. Cole4, a medical practitioner was not to be held liable simply because things went
wrong through an error of judgment in choosing one reasonable course of treatment in
preference of another.

2
Parra 33 of moot proposition intra moot court competition.
3
Fourth edition, Vol. 30, Para 35. Quoted in Jacob Mathew v. State of Punjab, A.I.R. 2005 S.C. 3180
4
(1958) 118 New L.j. 469.

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“The law does not require of a professional man that he be a paragon combining the
qualities of polymath and prophet.” – Bingham L.J5

When Mr. Smith first presented to Dr. Holland and asked about the lump, to which Dr.
Holland considered that it was a lipoma(that is a benign collection of fatty tissue) which was
a clinical judgement to take reasonable course of treatment though it went wrong through an
error of judgment shall not impose any form of liability on Dr. Holland (medical
practitioner).

A simple lack of care, on error of judgment or an accident, is not proof of negligent on the
part of a medical professional.6

Medical practitioner cannot be held liable for negligence merely because a better alternative
course of method of treatment was also available of simply because a more skilled doctor
would have chosen to follow or resort to that practice or procedure which the accused
followed.7

In the present case also after consulting for six month with Dr. Holland, Mr. Smith moved
from Sunnyland to another city, where Mr. Smith saw his new general practitioner (Dr.
Anushka Patel) who referred to hospital for further treatment, were as Dr. Holland did not
refer for further investigation. This clinical judgment cannot held Dr. Holland for negligence
because someone else of greater skill and knowledge would have prescribed different
treatment or operated in a different way.8

“The law does not require of a professional man that he be a paragon combining the
qualities of polymath and prophet.” – Bingham L.J9

5
Eckersley v. Binnie (1988) 18 Con. L.R. 1, 79,
6
M/s Spring Meadows Hospital v. Harjot Ahluwalia (1998) 4 S.C.C 39.
7
Ibid.
8
Fourth edition, Vol. 30, Para 35. Quoted in Jacob Mathew v. State of Punjab, A.I.R. 2005 S.C. 3180
9
Eckersley v. Binnie (1988) 18 Con. L.R. 1, 79.

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3. WHETHER MR. SMITH WAS NEGLIGENT OR NOT?

It is humbly submitted before this Hon’ble Supreme Court that Mr. smith is liable for
negligence under common law of Ranvicora.

“ negligence is the failure to do a thing which a reasonable & prudent man would have
done under the circumstances of the situation”. – Swayne

This definition involves three essentials of negligence:-

1. A legal duty to exercise due care on the part of the party complained of towards the
party complaining the formers conduct within the scope of duty.
2. Breach of the said duty and
3. Consequential damage in regards to the said breach.

In the present case, it was a duty of care of smith towards his health in which he fails to do
so whereas, the conduct of Dr. Holland was proper and efficient according to his professional
skills and ethics. Further Mr. smith breached his own duty of care by infrequently visiting to
doctor for the said treatment. However in itself it fulfills the second essentials of Swayne’s
definition (breach of the said duty). “ it was held that negligence is the omission to do an act
which a reasonable man should have done”.10 Whereas in consequence of the said breach Mr.
smith himself fulfills the third essential as he himself enlarged and made his disease more
severe by delaying it & not visiting to the doctor as per the scheduled dates.“ if a person’s
negligent act or omission was the proximate and immediate cause of death, the fact that the
person suffering injury was himself negligent and also contributed to the accident or other
circumstances by which the injury was caused would not afford a defence to the other”.11
Henceforth, Mr. smith is himself negligent and hence would not afford a defence.

Mr.smith is liable for negligence which is proven above. Whereas, Mr. smith’s negligence
does not mean breach of duty towards the other party but it means absence of due care on his
part about his own safety. In regards to the same, the doctrine of last opportunity rule well
applies.Acc. To this rule, when two person are induldge in the same act,that one of them, who
had the later opportunity of avoiding the accident by taking ordinary care should be liable for
the loss. In the considered case, Dr. Holland and Dr. Anushka Patel was indulged in the same

10
Blyth v. birnigham water works co. (1856) 11 Ex-ch 781.
11
Municipal Corporation of Greater Bombay v. laxmaniyer, A.I.R 2003 S.C 4182

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act of treating patient, one of them (Dr. Anushka Patel) had the later opportunity to avoid the
unforeseen acts by taking ordinary care, she could avoid the ill-will health of smith, Hence
she will be liable for all the inappropriate acts in regards to Mr. smith as per this doctrine.

The counsel humbly concurred with the lower court’s statement “that a body of evidence
suggesting that Dr. Holland’s decision not to send Mr. smith for further investigation was in
keeping with the conduct of a number of his peers does not determine his liability: it seems to
me that (again as a matter of common sense) such an attitude to diagnosis cannot be said to
form the basis of clinical practice which is acceptable and sufficient to discharge the
obligations imposed on a doctor within the scope of his or her duty of care”. The diagnosis
done by Dr. Holland in the year 2016 was done with a proper care and caution further the
same disease (lipoma) was concurred by Dr. Anushka Patel.

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PRAYER

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Honourable Court may be pleased to adjudge and declare:

1. That the appeal filled by Dr. Holland under section 23 of consumer protection act is
maintainable before the Supreme Court of Ranvicora.
2. That the finding of trial court was an incorrect application of the law.
3. That Mr. Smith was

And pass any such order, writ or direction as the Honourable Court deems fit and proper, for
this the Appellants shall duty bound pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL FOR THE APPELLANTS

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