TC: 41

INTRA SEMESTER MOOT COURT COMPETITION 2020

BEFORE THE HON’BLE SUPREME COURT OF RANVICORA

CIVIL APPELLATE JURISDICTION

Appeal no.______of 2018

Dr. Holland…………………………………………………………………………APPELLANT

versus.

Mr. Smith ………………………………………………………….…………. RESPONDENT

COUNCIL ON BEHALF OF APPELLANT

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 TABLE OF CONTENT

S. NO. PARTICULARS PAGE

2
 LIST OF ABBREVIATIONS

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 FNAC Fine needle aspiration cytology
17 LNJP Lok Nayak jai prakash hospital
18 Cor. Corporation
19 A.I.R All India Reports

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 LIST OF AUTHORITIES

 Cases

Achutrao haribhau khodwa & Ors v. State of Maharashtra & Ors (1996) 2 S.C.C.
332

Blyth v. Birnigham water works co. (1856) 11 Ex- Ch 781

Butterflied v. Forrester (1809) 11 East 60

Gregg v. Scott EWCA CIV 1471 (2002)

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

Ms. Kamani Sharma & Ors v. Dr. Anil Nadir & Ors 2015 SCC OnLine NCDRC
1823

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

Nance v. British Columbia electric rail A.C. 601, 611

Philips India ltd v. kunju Punnu A.I.R 1975 Bom. 306

 BOOKS & ARTICLES

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 STATEMENT OF JURISDICTION

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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 STATEMENT 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 at least 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 Ranvicora & 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 November 2017 , 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 Smith was
admitted to PAH with intense chest pains & on investigation, result of lymphoma
having spread into left thorax.

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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
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 Ranvicora.

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 STATEMENT OF ISSUES

ISSUE-I- WHETHER DR. HOLLAND IS LIABLE FOR THE MEDICAL

ISSUE-II- WHETHER MR. SMITH IS LIABLE FOR NEGLIGENCE OR NOT?

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 SUMMARY OF ARGUMENTS

ISSUE-I: Whether Dr. Holland is liable for contributory negligence or not?

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. Before
starting with the issue the counsel would like to establish that as per the facts of the
case Dr. Holland was might described as Smith’s “regular doctor” moreover Dr.
Holland considered that Mr. smith was suffering from lipoma (benign collection of
fatty tissue). As per the rule of “BUT FOR” Dr. Holland would only be liable to
compensate Mr. smith if he had overall probability of livelihood around 50% and
above.

ISSUE-II: Whether Mr. Smith is liable for negligence 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

MOST RESPECTFULLY SHOWETH:-

1: WHETHER DR. HOLLAND IS LIABLE FOR CONTRIBUTORY

NEGLIGENCE OR NOT?

1.1 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.
Before starting with the issue the counsel would like to establish that as per the
facts of the case Dr. Holland was might described as Smith’s “regular doctor”
moreover Dr. Holland considered that Mr. smith was suffering from lipoma
(benign collection of fatty tissue).
1.2 In the present case it has been mentioned that Mr. Smith himself was not careful
towards his health as the symptoms of lipoma was first manifested itself atleast
18 months prior to his first medical consultation with Dr. Holland which was
take place in 2016.
1.3 This delay of 18 months itself shows that Mr. Smith was very irresponsible
towards his health. Also as per the facts of the case, it has been cleared that
although Dr. Holland was a regular Doctor of Mr. Smith but still Mr. smith
attends infrequently to Dr. Holland’s surgery which again satisfies the
contention that Mr. smith was very careless towards his health.
1.4 Dr. Holland has clearly showed his care as a general practitioner towards him.
At the time, Dr. Holland has given a proper medical care in accordance with the
situation because there was no pain & discomfort to him.
Similarly in a case it has been held that “A defendant charged with negligence
can clear himself if he shows that he acted in accordance with general &
approved practice”.2
2
Philips india ltd v. kunju punnu A.I.R 1975 Bom. 306;

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 1.5 In the present case Dr. Holland considered the disease as lipoma in 2016
whereas in August 2017, Dr. Anushka Patel (new general practitioner) also
considered the lump as lipoma which in itself shows that Dr. Holland was true
in himself while the treatment of Mr. smith. In the case of Jacob Mathew v.
State of Punjab3 :
“The fact that a defendant charged with negligence acted in accord with the
general and approved practice is appear to clear him of a charge.
“any reasonable man entering into profession which require a particular level
of learning to be called a professional of that branch, impliedly assures the
person dealing with him that the skill which he professes to possess shall be
exercised with reasonable degree of care and caution”.
Hence in the following case, it has been proved that Dr. Holland while using his
professional skills & care declared the disease as lipoma which was later on
concurred by Dr. Anushka Patel.
1.6 As the lower court has also stated in his judgement that, in 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.
1.7 In the case of Achutrao haribhau khodwa & Ors v. State of Maharashtra &
Ors4 :
“merely because the Dr. chooses one course of action in preference to the other
one available, he would not be liable if the course of action chosen by him was
acceptable to the medical profession”.
Same in the case, Dr. Holland had take the one course of action which Mr.
smith attended only infrequently which again shows his carelessness.
1.8 It has been mentioned in the facts that Mr. smith first manifested symptom
itself atleast 18 months before consulting with Dr. Holland. He spoke about it
with his wife, who encouraged him to visit a doctor which clearly shows that he
was not careful towards his health. His wife is the one who encouraged him to
go to the doctor for the checkup and it might be possible that if he did not talk
about it with his wife, he could not visit to the Dr. Holland for the treatment.
3
A.I.R 2005 S.C. 3180
4
(1996) 2 S.C.C. 332.

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 Similarly, In the case of Nance v. british Columbia electric rail5
“The injured party did not in his own interest take reasonable care of himself
and contributed, by his own want of care, to his own injury”.
“It was held that when the plaintiff himself if held liable then no compensation
will be awarded to him”.6
1.9 In the referred case it was held that “The complaint did not follow the advice of
OP-1 (first doctor), about investigations like FNAC and biopsy of the lesion for
proper diagnosis”. But, after lapse of 8 months patient went to LNJP, which
became fatal for him. Thus, it was negligence from the patient, for which OP-1
is not liable”.7
Deciding the current issue of medical negligence, we are of considered view
that, there was neither medical negligence nor any deficiency in service by the
Dr. Holland. On the basis of foregoing discussions, Dr. Holland showed all the
duty of care towards his patient, Moreover, smith himself is negligent towards
lipoma.
1.10 Standard of care is the care law expect from a doctor. Law does not expect
it at a higher standard or low standards. The standard of care is the standard of
any reasonable prudentia by a medical practitioner. He had treated the patient
with the best of his skills and knowledge.
“All three judges rejected the appellant’s attempt to challenge the evidential
basis for this conclusion. But his subsequent argument for damages was
twofold. First, he claimed that the negligent delay in diagnosis allowed the
lymphoma to spread to his chest, the extra pain & suffering from this secondary
tumour demanded compensation as did the resulting reduction in life
expectancy. Secondly, the court was invited to reconsider loss of chance of a
more favourable outcome as a form of compensable damages in itself. The
recent of House of Lords decision in fair child meant that their earlier ruling in

5
A.C. 601, 611
6
Butterflied v. Forrester (1809) 11 East 60
7
Ms. Kamani Sharma & ors v. Dr. Anil Nadir & Ors. 2015 SCC Online NCDRC 1823

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 hotson should no longer be seen as excluding such loss of chance in medical
negligence cases”.8

1.11 As per the facts of the case, Mr. smith have a remission chance of
approximately 45% & a similar chance of disease free survival for 10 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 chance of overall survival moved from over 45%
to approximately 30%. Furthermore, Dr. Holland would not be liable as the
injury was unforeseeable moreover, as per the rule of “BUT FOR” Dr. Holland
would only be liable to compensate Mr. smith if he had overall probability of
livelihood around 50% and above. But in the present case, the chances of
livelihood of Mr. smith was already below 50% which is further reduced to 30
% due to the delay caused by Mr. smith in taking reasonable care. Henceforth
Dr. Holland cannot be held liable for negligence on his part of care.

8
Gregg v. Scott EWCA CIV 1471 (2002).

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ISSUE-2: WHETHER MR. SMITH IS LIABLE FOR NEGLIGENCE OR NOT?

2.1 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.

2.2 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”.9

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

9
Blyth v. Birnigham Water Works co. (1856) 11 Ex-ch 781.

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 the injury was caused would not afford a defense to the other”.10 Henceforth, Mr. smith

is himself negligent and hence would not afford a defense.

2.3 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 people are indulged 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 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.

2.4 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.

2.5 As per the facts of the case, Mr. smith have a remission chance of approximately 45%

& a similar chance of disease free survival for 10 years. For such a patient the addition of
10
Municipal Corporation of Greater Bombay v. Laxman Iyer, A.I.R 2003 S.C 4182

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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 chance of overall survival

moved from over 45% to approximately 30%. Furthermore, Dr. Holland would not be liable

as the injury was unforeseeable moreover, as per the rule of “BUT FOR” Dr. Holland would

only be liable to compensate Mr. smith if he had overall probability of livelihood around

50% and above. But in the present case, the chances of livelihood of Mr. smith was already

below 50% which is further reduced to 30 % due to the delay caused by Mr. smith in taking

reasonable care.11 Henceforth Mr. Smith is liable for the whole act of negligence.

PRAYER

11
Supra Note 8.

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Wherefore in the light of the facts raised, arguments advanced and authorities cited, the
counsel for the Appellant humbly prays before the Hon’ble Supreme Court that it may be
pleased to hold, adjudge and declare:

1. THERE WAS NO MEDICAL NEGLIGENCE ON THE PART OF Dr.

Any other relief which this Hon’ble Court may be pleased to grant in the interest of Justice,
Equity and Good Conscience. All of which is respectfully submitted.

For this act of kindness, the Petitioner shall be Duty Bound Forever Pray.

Counsel on behalf of Appellant

S/d_________________

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