Moot court memo

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-MEMORIAL FOR THE

APPELLANT-SEPTEMBER 2011 INTRA MOOT-COURT COMPETITION

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TEAM CODE:

SEPTEMBER 2011 INTRA MOOT-COURT COMPETITION

I

N

T

HE

H

ONOURABLE

HIGH C

OURT

O

F

GUJRAT

AHMEDABAD

VIJENDRA (APPELLANT)

v.

ABHILASHA & DR. DANG (RESPONDANT)

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LIST OF ABBREVIATIONS

1. &: And 2. ART.: Article 3. Co.: Corporation 4. Dr.: Doctor 5. Ed.: Edition 6. e.g.: example 7. HC: High Court 8. Hon’ble: Honourable 9. i.e.: that is 10. v.: versus 11. Yr.: Year

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INDEX OF AUTHORITIES

[JUDICIAL DECISIONS]

1. Blyth v. Brimingham Waterworks Co. 2. Jacob Mathew v. State of Punjab 3. Donoghue v. Stevenson

4. Poonam Verma v Ashwin Patel

[BOOKS REFERRED AND CITED]

1. The Law Of Torts By Ratanlal & Dhirajlal 2. The Indian Penal Code (3rd Ed.) By K.D. Gaur 3. TORT by WINFIELD and JOLOWICZ.

[ACTS AND STATUTES]

1. Constitution of India 2. Indian Penal Code, 1860 3. Limitation Act, 1963

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5 [WEBSITES REFERRED]

1. http://www.manupatra.com last visited on August 29, 2011 2. http://www.indlaw.com last visited on August 28, 2011 3. http://bcasindia.nic.in last visited on August 28,2011

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STATEMENT OF JURISDICTION

THE COUNSELS REPRESENTING THE APPEALLANTS HAVE ENDORSED THEIR

PLEADINGS BEFORE THE HON’BLE HIGH COURT OF GUJRAT AT AHMEDABAD,

UNDER ART.225 OF THE CONSTITUTION OF INDIA. THE PLAINTIFFS FURTHER

SUBMIT THAT THE HON’BLE HIGH COURT HAS JURISDICTION TO DEAL WITH THE SUBJECT MATTER OF THE SUIT AS THE SUIT PROPERTY IS SITUATED WITHIN THE JURISDICTION OF THE HON’BLE HIGH COURT.

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STATEMENT OF FACTS

 THE FACTSOFTHECASEAREASFOLLOWS:-

 Asha a 14 yr. girl lives in Ahmedabad with her mother Abhilasha. Her father has divorced her mother and Asha has started exhibiting violent behaviour and delusionary nature of which her neighbours have been victims of her conduct.

 Asha has been diagnosed of suffering from “schizophrenia”, when Abhilasha consulted Dr. Adbhut, a leading psychiatrist of Ahmedabad.

 Treatment is underway and Asha is responding positively to the treatment. However, unknown to Abhilasha, Asha has stopped taking the medicine since two weeks.

 Vijendra a software engineer by qualification and a gifted cricket player is representing Gujarat at domestic cricket and aspires to play for national cricket team.

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 While going for morning practice session on road in front of Asha’s house on 7/9/2008, Asha screamed indicating to Vijendra “I know you are out to get me and I am going to get you first”.

 VIjendra, who had no knowledge of Asha’s mental illness, phoned Abhilasha about the incident. Abhilasha assured that it will not happen again. Vijendra believed Abhilasha’s assurances and, for that reason, did not seek to avoid Asha.

 Asha got the scolding from Abhilasha and when Abhilasha asked Asha if she was taking her medication, she assured her that she was taking medicine and Abhilasha did not pursue the matter further.

 On 9/9/2008 Asha saw Vijendra taking ice-cream in a parlour adjacent to her house and rode her bicycle rapidly as fast as she could heading directly to Vijendra. Although Asha swerved away from Vijendra at the last moment but Vijendra had to react by diving to one side. He stuck his back against his bike parked nearby and suffered severe back injury.

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 Dr. Dang, a renowned neurosurgeon of Ahmedabad advised him that it would be impossible for him to take part in professional cricket for leading his normal life without back trouble for many yrs.

 Dr. Dang offered a very good prospect of strengthening his back sufficiently to enable him to play cricket. He was critical of this research and knew that recent research had suggested that the new procedure carried a small risk of damaging the spine and then also did not tell Vijendra about it.

 Vijendra decided to undergo the surgery. Although the operation was carefully performed, he suffered serious damage to his spine and consequently was unable to work even as a software engineer and suffered considerable pain.

 In January 2010, Vijendra’s mother suddenly collapsed while climbing the stairs in her house. As there was no help available, Vijendra lifted his mother and experienced terrible back pain and due to this rendered. permanent disability

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ISSUES RAISED

1. Whether the mother is liable for negligence or not.

1.1 Mother was negligent in not taking care of her schizophrenic daughter Asha, as without her mother’s knowledge Asha had stopped taking medication.

1.2 Mother was negligent as their neighbours have been the victims of Asha’s conduct & then also assured Vijendra that Asha would not repeat this type of act without taking proper care that Asha does not do any such act in future.

2. Whether Dr. Dang was Negligent in conducting the treatment of Vijendra. 2.1 Whether Dr. Dang was professionally negligent in his conduct.

2.2 Whether Dr. Dang was responsible damage suffered by Vijendra & ruining his professional career.

3. Whether there was any contributory negligence on the part of Vijendra with respect to the damage he suffered .

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SUMMARY OF PLEADING

Whether Abhilasha was negligent in performing of her fiduciary duty

towards Asha-

In an action for negligence, the plaintiff has to prove the following essentials : 1. That the defendant owed duty of care to the plaintif

2. The defendant made a breach of that duty

3. The plaintiff suffered damage as a consequence thereof.

In this particular case being the mother of a girl suffering from Schizophrenia and when Vijendra complained about Asha’s act, Abhilasha owed a duty of care to the plaintiff VIjendra.

And by not properly taking special care of her daughter lead to the breach of duty which she was expected to do as a reasonable prudent person.

Due to this breach of duty, plaintiff Vijendra suffered damages in terms of health and money.

So all the three essentials of Negligence have been fulfilled and Abhilasha is liable for Tort of Negligence.

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2. WHETHER DR. DANG WAS LIABLE FOR PROFESSIONAL

NEGLIGENCE

Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person poses the requisite skill for performing for this task. Any reasonable man entering into a profession requires a particular level of learning to be called a professional of that branch.

Hence for professional negligence the pre requisites are: 1. Doctors duty of care, in deciding:-

(i) whether to under take the case (ii) deciding what treatmemnt to give (iii) administration of treatment

2. Breach of this duty of care by a professional amounts to professional negligence

Thus Dr. Dang’s omission of informing the appellant about the known risk makes him lianble for damages

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3. WHETHER THERE WAS ANY CONTRIBUTORY NEGLIGENCE ON

THE PART OF THE APPELLANT.

With respect to the first respondent ,the assurance by the mother regarding her daughter was given to the appellant hence he had no contribution in causing himelf the damage also when he jumped and hit the byke , the

reasonable apprehension created by Asha forced him to act proportionately as a reflex.

Also the appellant trusted the doctor as he was a renowned surgeon and gave consent to undego the operation unaware of the involved risk to his spine which the doctor was aware of.

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BODY OF PLEADINGS

Negligence

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is the breach of duty caused by the omission to do

something which a reasonable man, guided by those principles which

ordinarily regulate the conduct of human affairs, would do, or doing

something which a reasonable prudent and reasonable person would not

do.

According to Charlesworth & Percy

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, Negligence, in current forensic

speech, negligence has three meanings. There are : (i) a state of mind, in

which it is opposed to intention; (ii) careless conduct; and (iii) the

breach of duty to take care that is imposed by either common or statute

law. All three meanings are applicable in different circumstances but

anyone of them does not necessarily exclude the other meanings.

In this particular case, Abhilasha omitted her act which she was

reasonably supposed to do in normal circumstances. Instead of taking

special care of her daughter after the complaint of Vijendra & checking

whether her daughter is taking medicine on time or not she did not act in

a proper way due to which Asha’s mental illness grew.

Schizophrenia is a serious mental illness. People who suffer from it are

unable to relate their thoughts and feelings to what is happening around

them and often withdraw from society. Asha was suffering from the

same disease only, she was unable to relate her thoughts with the reality

and the reason for this disease was divorce of her parents after a long

marital discord.

1. Blyth v. Brimingham Waterworks Co. 1856 LR 11 Exch 781 2. Jacob Mathew v. State of Punjab, A.I.R 2005 S.C. 3180

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In a French case

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, Parents have accordingly been held strictly liable for a

traffic accident caused by their teenage son riding his moped as

vicarious liability in French law extends beyond employees and includes

children (CC, art 1384). However, in English law, the victim may sue

the parents only if they owed him a direct duty of care in respect of the

child.

As the elements laid down in Poonam Verma v Ashwin Patel

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case that

to prove negligence three elements should be proved

(1)Defendant was under a duty to take reasonable care towards the

plaintiff to avoid the damage complained of,

It means a legal duty rather than a mere moral, religious or social duty.

The plaintiff has to establish that the defendant owed to him a special

legal duty to take care, of which he has made a breach.

In Donoghue v. Stevenson

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, A purchased a bottle of ginger beer from a

retailer for the appellant, a lady friend. Some of the contents were

poured in a tumbler and she consumed the same. When the remaining

contents of the bottle were poured into her tumbler, the decomposed

body of a snail floated out with her ginger-beer. The appellant alleged

that she seriously suffered in her health in consequence of having drunk

a part of the contamined contents. The bottle was of dark opaque glass

and closed with metal cap, so that the contents could not be ascertained

by inspection. She bought an action against the manufacturer for

damage.

The House of Lords held that the manufacturer owed her a duty to take

care that the bottle did not contain any noxious matter, and that

manufacturer would be liable on breach of duty.

3. Geoffrey Samuel’s Cases and materials on torts (2006 edition) 4. 1995(1) CPR 276

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Lords Atkin said, “It is remarkable, how difficult it is to find in the

English authorities statements of general application defining the

relations authorities statements of general application defining the

relations between parties that give rise to the duty. The courts are

concerned with the actual relations which come before them in actual

litigation, and it is sufficient to say whether the duty exists in those

circumstances. The result is that the courts have been engaged upon an

elaborate classification of duties as they exist in respect of property,

whether real or personal, with further divisions as to ownership,

occupation or control and distinctions based on the particular relations of

the one side or the other , whether manufacturer, salesman or landlord,

customer, tenant, stranger, and so on. In this way, it can be ascertained at

any time whether the law recognizes a duty, but only where the cases

can be referred to some particular species which has been examined and

classified

(2)There was a breach of duty on the part of the defendant,

In this case there was a breach of duty of manufacturers as they owed

the plaintiff to take care that the bottle did not contain any noxious

matter.

(3)The breach of duty was legal cause of the damage complained of.

This breach of duty caused damage to plaintiff, as she seriously suffered

in her health in consequence of having drunk a part of the contamined

contents.

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Proving the above elements in the given case:

(1) Abhilasha was under a duty to take higher degree of care towards

Asha as her daughter was suffering from a serious mental illness.

Vijendra even complained to Abhilasha but she did not give much

importance to it.

(2)There was surely a breach of duty on the part of Abhilasha because

even after complain of Vijendra she did not take care of Asha which a

prudent person would have done. Because of her negligence Asha got on

the bicycle to hit Vijendra and ended in Vijendra getting hurt badly in

the spine.

(3)Damage occurred to Vijendra as his spine was badly hurt and he had

to leave his cricketing career. Even he had the monetary loss as he had to

consult doctors and undergo through various tests.

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2. WHETHER DR. DANG WAS NEGLIGENT IN CONDUCTING THE TREATMENT OF VIJENDRA

It is humbly submitted that the respondent 2 Dr. Dang was negligent in conducting the treatment of the appellant which attributed damage to him also ruining his professional career. As the facts clearly said ‘’ operation was carefully performed’’ but the argument we would like to put forward is that by not informing the appellant about the serious risk involved in the operation Dr. Dang committed a breach of duty to take care amounting to professional negligence on his part as a renowned doctor. The appellant suffered a severe back injury and for treatment he went to the respondent 2 . The respondent 2 was expected to inform the appellant . To be precise we are initially defining the points on which we find respondent2 liable.

PROFESSIONAL NEGLIGENCE

In Ramaswamy Iyer’s book ‘THE LAW OF TORTS’’, he throws some light on the topic of professional negligence . Accordingly .A person who holds himself out ready to give medical advice and treatment when consulted by a patient owes him certain duties namely a duty of care in deciding whether to undertake the case ,a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment .A breach of any of these duties gives a right of action for negligence to patient .The doctor no doubt has a discretion in

choosing treatment which he proposes to give to the patient and such discretion is relatively ample in the in cases of emergency.

A practitioner can only be held liable in this respect if his diagnosis is so palpably wrong as to prove negligence,that is to say .if his mistake is of such nature as to imply an absence of reasonable skill in the profession. where a patient suffered

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damage after there had been a departure from the orthodox course of treatment , the court had to inquire whether the doctor had taken all proper factors into account prior to taking action and order to determine whether that departure was justified . If itwas not justified there was a breach if duty to the patients.1

THE standard of care required of a doctor in the course of his diagnosis and treatment, namely the exercise of the ordinary skill which a doctor in the

defendant’s position would be expected to posess.[ hills v potter & ors [1983] 3 All ER 716 ; SIDWAY v bethlem royal hospital [1984] 1 All ER 1018 ; THAKE & ANOR v Maurice [1984] 2 All ER 513 ( vasectomy- failure to give warning of possible regaining of fertility –a breach of surgeon’s duty of care .

In an australian case relating to breach of duty in ‘’failure to warn’’, the plaintiff Mrs. Hart was suffering from persistent sore throat .Dr. Chappel, whom she

consulted diagnosed a pharyngeal pouch in her oesophagus and recommended surgery .Dr. chapel , however, failed to inform her of the small, but known risk of infection and damage to vocal cords resulting in voice loss though she has

expressed her concern about it . inspite of there being no negligence in performing the surgery , the risk materialised and Mrs. Hart suffered serious voice loss .The finding was that had she been warned of the risk , she would have sought further advice and she would have wanted the operation

performed by the most experienced person available .On these the HC of Australia by majority upheld the decree for award of damages . the Australian case was referref with approved by the House of Lords in Chester v. afsher.

In Chester v. afsher , the claimant patient underwent surgery for removal three intraverbal discs as a cure for severe back pain . although the claimant has questioned the surgeon she was not told about the known risk of nerve

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damaging in paralysis which she suffered after the operation . Had she been told about this risk she would not have atleast then undergone the operation .On these facts the claimant was held entitled to damages .There was a breach of duty on the part of the surgeon in not informing the patient of the risk but the patient would remained remedyless,had the conventional but for test were applied ,therefore, in the special circumstances of the case and to prevent injustice that test was not applied .

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2.1 WHETHER Dr .DANG WAS PROFESSIONALLY NEGLIGENT IN HIS CONDUCT. It is humbly submitted that Dr. dang was professionally negligent on his not informing the appellant about the hazardous risk involved in the operation. The appellant trusted the respondent2 as in a doctor-patient relationship and also based on the information given by the doctor the appellant agreed to undergo the operation.

According to the medical ethics ,although a physician has full liberty to adopt any of the accepted theories of medicine and surgery in which he

honestly believes in but ordinary and reasonable care and skill should be applied at all times with all the patients. The question is not the competency of Dr. dang as a surgeon but it is the criterion of a reasonable man since negligence is also the omission to do something which a reasonable man, guided upon those

considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do[ page 242 ‘’breach of duty’’ –tort by Winfield and jolowicz].Also ,reasonable varies with circumstances questioning ;;if the defendant came up to the standard of a reasonable man’. Dr. Dang was ‘’critical’’ of the research about the new surgical procedure carrying the risk of damaging the spine. The appellant was already suffering from severe back injuries and the failed operation

aggravated the injury further thus causing serious damage to this spine. The appellant was not informed about this risk involved although respondent 2 the doctor was fully aware about the risk. He brought in his prejudice being ‘critical’ of the recent research thus disregarding it. It was a duty on his part to inform the patient vijendra about any serious risks involved in the operation so that he could give a free and fair voluntary consent to undergo the operation and sought

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the injury. But due to the faulty judgement of Dr. Dang and not informing about the known risk to the appellant , he suffered serious loss.

On the above mentioned points the respondents seek to prove that respondent 2 Dr. Dang was professionally negligent in his conduct towards vijendra thus

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2.2 WHETHER DR. DANG WAS RESPONSIBLE FOR DAMAGE SUFFERED BY VIJENDRA AND RUINING HIS PROFESSIONAL CAREER.

It is humbly submitted that Dr. Dang’s act was jointly responsible for the damage suffered by vijendra and ruining his professional career. As there was a new surgical procedure that offered a very good prospect of strengthening his back sufficiently to enable him to play cricket again. Dr. Dang knew that the recent research suggested that this surgical procedure had the risk of damaging the spine but as he was ‘critical’ of this research so he did not tell vijendra about it. As a patient undergoing a major surgery ,vijendra had the right to be informed about all the risks involved as it was a important decision for him in the sense that he will again be able to pursue his interest which was cricket ,he being a gifted player.

Trusting on his doctor the appellant agreed to undergo the operation without proper knowledge of the risks involved in the vague idea that he had been pre-informed about any risk .

The operation was performed carefully but it led to serious damage to the spine of the appellant .Consequently, he was unable to work even as a software

engineer and suffered considerable pain. If not the appellant had undergone the operation he would have been working as a software engineer but due to the breach of duty to take care on the part of the doctor the appellant suffered damage and lost his job of a software engineer finally the cause rendering him permanently disabled.

In the light of the above points , the counsel would like to state that Dr. Dang is responsible to the appellant for damage suffered by him and ruining his

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3.WHETHER THERE WAS ANY CONTRIBUTORY NEGLIGENCE ON THE PART OF VIJENDRA WITH RESPECT TO THE DAMAGE HE SUFFERED.

It is humbly submitted that there was no contributory negligence on the part of the appellant. As firstly , the respondent 1 Abhilasha assured the appellant saying that her daughter has earlier made threats to the people but she would do no physical harm to the appellant which made him believe that the 14 year old Asha will not interfere with his space and therefore he did not seek to avoid her . Also when Asha saw vijendra standing near the ice cream parlour she rode as fast as she could, as clearly mentioned in the facts creating reasonable

apprehension in the mind of the appellant that she may hit him with her bicycle . The appellant’s reaction of jumping to one side was a reflex action any

reasonable human would take to prevent any harm to him and also Asha’s previous action has created some doubt in the appellant’s ,mind .

Secondly, coming to the respondent 2 Dr. Dang , although the appellant gave consent to undergo the operation but he was not aware of the risk to his spine which was known beforehand to the doctor . He trusted the Doctor as he was a renowned surgeon of Ahmedabad and thus went by his advice to take the operation according to the new procedure .

Also after the failure of operation when the appellant’s mother collapsed while climbing the stairs he did not intentionally do the act of picking her up to damage his spine thus rendering himself permanently disabled.

It was a inevitable accident which could not have been foreseen and it was necessity on the part of the appellant since he had no one near to help him pick

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his mother up i.e it was a rescue case being an exception to the maxim VOLENTI NON FIT INJURIA. As in the case of Wagner v. International Railway . Applying the ‘but –for’ test in this case prima facie the respondents may not appear to be liable but if we go for causation of fact then we can deduce from the chain of consequences that the tortuous act of the respondents was responsible for the damage suffered by the appellant thus ruining his professional career.

Thus keeping in view the above points, the counsel would like to submit that there was no contributory negligence on the part of the appellant .