Team C14-22 Defendants

TEAM CODE: C 14- 22

COMMONWEALTH MOOT COURT COMPETITION, 2014

IN THE DISTRICT COURT AT KOLKATA

Tony Stanley…………………..…………………………………………………….Claimant

v.

Dr. Sachin Pawar……………………………………………………………….1st Defendant

And

Dr. Debjyoti Sarkar…………………………………………………………..2nd Defendant

MEMORIAL for DEFENDANT

1

Table of Contents

TABLE OF CONTENTS

TABLE OF CONTENTS.........................................................................................................I

INDEX OF AUTHORITIES.................................................................................................IV

STATEMENT OF JURISDICTION..................................................................................XII

STATEMENT OF FACTS................................................................................................XIII

SUMMARY OF PLEADINGS..........................................................................................XVI

PLEADINGS............................................................................................................................1

I. THAT THE DEFENDANTS WERE NOT COMPOSITELY NEGLIGENT IN CARRYING OUT

THE TREATMENT OF SHARON STANLEY..............................................................................1

A. The Defendants had Exercised Ordinary Skill and Care........................................1

i. The diagnosis carried out by the defendant was based on sound medical prudence. 2

ii. The medication prescribed by the defendant was in consonance with the

established medical practice..........................................................................................4

B. The Defendants had Followed the Accepted Norms of Medical Practice..............6

i. The 1st defendant was under no obligation to make a referral to a specialist............7

ii. The defendants were not supposed to give supportive treatment in lieu of the

diagnosis carried out by them........................................................................................8

C. The Damages caused are not a Direct Consequence of the Act of the Defendants.

............................................................................................................................................9

i. The damages were not foreseeable.............................................................................9

ii. The intervening act of the claimant broke the chain of causation.............................9

i

Table of Contents

II. THE DEFENDANTS ARE EXEMPTED FROM ANY LIABILITY RESULTING FROM

NEGLIGENCE AS A RESULT OF THE PATIENT UNDERTAKING CUM GUIDELINE

DOCUMENT..........................................................................................................................11

A. The Patient Undertaking cum Guideline Document is a Standard Form

Contract Enforceable by Law.......................................................................................11

B. The Standard Form Contract is not against the Public Policy.............................13

C. The Contract does not Attract the Provisions of § 16 of the Indian Contract Act

1872..................................................................................................................................14

III. VASANTECH HOSPITAL WOULD BE LIABLE FOR ANY NEGLIGENCE WHILE

CARRYING OUT THE TREATMENT......................................................................................15

[A] Vicariously Liable for the Conduct of the Defendants.........................................15

[B] Direct Liability for the Nosocomial Infections......................................................17

IV. THE LIABILITY OF THE DEFENDANTS WOULD GET REDUCED, IN ARGUENDO, OWING

TO THE CONTRIBUTORY NEGLIGENCE ON PART OF THE CLAIMANT..............................18

A. Claimant Failed to Take Reasonable Care of His Wife’s Safety..........................18

B. The Negligence on Part of the Claimant was Substantial......................................18

C. The Claimant is Liable for not Taking a Reasonable Course of Action even if a

Dangerous Situation was Created by the Defendants.................................................19

V. THAT THE INDIAN LAW WOULD GOVERN THE CLASSIFICATION OF THE HEADS OF

DAMAGES.............................................................................................................................20

A. The Proper Law of the Dispute is the Substantive Laws of India........................21

B. Ascertaining the Heads of Damages is a Substantive Issue...................................21

C. Arguendo, if the Heads of Damages is a Procedural Issue, Lex Fori Applies......22

D. English Courts would have also applied the Heads of Damages as Provided

under the Substantive law of India...............................................................................22

ii

Table of Contents

VI. THAT THE CLAIMANTS CANNOT SUE THE DEFENDANTS IN ANOTHER

JURISDICTION, WHILE A LEGAL REMEDY IS SOUGHT IN THE INDIAN COURTS ALSO....23

A. Suit filed during the pendency of the present proceedings....................................23

i. A civil suit in UK would be against the vexatious and oppressive............................24

ii. A civil proceeding in UK would be in a forum non-conveniens..............................24

B. Suit is filed After the Conclusion of the present proceedings................................25

i. Application of the doctrines of Res Judicata and issue estoppel..............................25

ii. Judgment of the present court will lead to merger of cause of action.....................26

iii. Obligation on the United Kingdom to recognize and enforce the Indian judgment

under International Principles.....................................................................................27

PRAYER.................................................................................................................................28

iii

Index of Authorities

INDEX OF AUTHORITIES

STATUTES

Civil Jurisdiction and Judgments Act, 1982.............................................................................26

Regulation (EC) No 864/2007, 2007 O.J. (L 199/40)..............................................................22

UNIDROIT PRINCIPLES OF TRANSNATIONAL CIVIL PROCEDURE.....................................24, 27

INDIAN CASES

A.S. Mittal v. State, A.I.R. 1989 S.C. 1570...............................................................................2

AparnaDutta v. Apollo Hospitals Enterprises Ltd., A.I.R. 2000 Mad. 340.............................16

Arjun Singh v. Mohindra Kumar and Ors., A.I.R. 1964 S.C. 993)..........................................26

Ashok Kumar Patil v. New India Assurance Co., A.I.R. 2007 Del. 136.................................14

B.O.I. Finance Ltd. v. Custodian, (1997) 10 S.C.C. 488.........................................................13

C.K. Asati v. Union of India, A.I.R. 2005 M.P. 96..................................................................12

D. Rajamani v. Azhar Sultana, A.I.R. 2005 A.P. 260..............................................................12

Dharangadhara Chemical Works Ltd v. State of Saurashtra, A.I.R. 1957 S.C. 264................15

Dr. Balram Prasad v. Dr. KunalSaha and Ors.,(2014) 1 S.C.C. 384........................................22

Dr. Laxman v. Dr. Trimbak, A.I.R. 1969 S.C. 128....................................................................2

Employees State Insurance Corporation v. Apex Engineering Pvt. Ltd., (1997) 9 J.T. 54.....15

Gherulal v. MahadeodasMaiya, A.I.R. 1959 S.C. 781.............................................................13

INS Malhotra v. Dr A. Kriplani, (2009) 4 S.C.C. 705...............................................................1

Jacob Mathew v. State of Punjab,, (2005) 6 S.C.C. 1....................................................1, 4, 6, 8

Joseph Alias Pappachan and Ors v. Dr. George Moongely, A.I.R. 1994 Ker. 289.................16

Kusum Sharma v. Batra Hospital, (2010) 3 S.C.C. 480.............................................................2

iv


M.K. UsmanKoya v. C.S Santha, A.I.R. 2003 Ker. 191..........................................................13

M/s Churasia& Co. v. Smt. PramilaRao, (1974) A.C.J. 481...................................................10

M/s Prakash Road Lines (P) Ltd v. HMT Bearing Ltd, A.I.R. 1999 A.P. 106........................12

Mahesh Chandra v. ZilaPanchayat, A.I.R. 1997 All. 248........................................................12

Malay Kumar Ganguly v. AbaniRoychowdhury and Anr. andSukumar Mukherjee and Ors.,

(2004) I.L.R. 1 Cal. 332.............................................................................3, 5, 6, 7, 9, 10, 19

Master AbhishekAhluwalia v. Sanjay Saluja, (2014) C.P.J. 290 (N.C.)....................................3

Modi Entertainment Network and Anr. v. W.S.G. Cricket P.T.E. Ltd., A.I.R. 2003 S.C. 1177

........................................................................................................................................23, 25

Municipal Corporation of Greater Bombay v. LakshmanIyer, (2003) 8 S.C.C. 731...............18

Oil and Natural Gas Commission v. Western Co. of North America, A.I.R. 1987 S.C. 674. .23

Patel Engineering Ltd v. National Highways Authority of India, A.I.R. 2005 Del. 298.........12

Pugh v. AshutoshSen, (1928) 56 I.A. 93 (India)........................................................................1

RamanathanChettiar v. Somasundaram Chettiar, A.I.R. 1964 Mad. 527................................22

SatyadhyanGhosal v. Smt. Deorajin Debi, [1960] 3 S.C.R. 590.............................................26

Shankar BalajiWaje v. State of Maharashtra, A.I.R. 1962 S.C. 517........................................15

Smt. Rekha Gupta v. Bombay Hospital Trust and Anr, (2003) C.P.J. 160 N.C......................17

Smt. Satya v. ShriTeja Singh, A.I.R 1975 S.C. 105.................................................................20

Spring Meadows Hospital & another v. HarjolAhluwalia&Anr.,(1998) 4 S.C.C. 39...............7

State of Haryana v. Santra, A.I.R. 2000 S.C. 1888....................................................................2

T.O. Anthony v. Karvarnan, (2008) 3 S.C.C. 748.....................................................................1

UK CASES-

AK Investment CJSC v. Kyrgyz Mobil Tel. Ltd., [2011] UKPC 7.........................................21

American Main Line Ltd. v. Afrika, (1937) A.I.R. 168 (PC)..................................................18

v


Australian Commercial Research and Development Ltd. v. A.N.Z. McCaughan Merchant

Bank Ltd., [1989] 3 All E.R. 65...........................................................................................24

Baker v. Dalgleish Steam Ship Company, [1922] 1 K.B. 361.................................................21

Black v. Yates, [1992] Q.B., 526 at 529............................................................................26, 27

Blake v. Midland Railway Company, [1852] 18 (Q.B.) 93.....................................................21

Bolam v. Friern Hospital Management Committee.......................................................1, 2, 4, 6

Bolitho v. City and Hackney Health Authority, (1997) 4 All E.R. (H.L.) 771 (appeal taken

from Eng.)..............................................................................................................................3

Boy Andrews v. St. Roguvald, (1947) 2 All E.R. (H.L.) 350..................................................18

Carl Zeiss Stiftung v. Rayner& Keeler Ltd. (No. 2) [1967] 1 A.C. (H.L.) 853.......................26

Chaplin v. Boys, [1971] A.C. 356 (H.L.).....................................................................20, 21, 22

Davies v. Powell Duffryn Associated Collieries Ltd., [1942] A.C. (H.L.) 601.......................21

Hamlyn & Co v. Talisker Distillery, (1894) 21 R (H.L.) 21....................................................20

Harding v. Wealands, [2006] UKHL 32............................................................................21, 22

Hinz v Berry [1970] 2 Q.B. 40.................................................................................................21

In Re Fuld’s Estate (No. 3), [1966] 2 W.L.R. 717...................................................................20

Kohnke v. Karger, [1951] 2 K.B. 670......................................................................................26

Lewis v. Great Western Rly, (1877) 3 Q.B.D. 195..................................................................11

Logan v. Bank of Scotland (No. 2), [1906] 1 K.B. 141...........................................................24

Maynard v. Midlands Regional Health Argument, (1985) 1 All E.R. (H.L.) 635 (appeal taken

from Eng.)..............................................................................................................................2

Mckew v. Holland &Hannen&Cubbits (Scotland) Ltd, (1969) 3 All E.R. (H.L.) 1621..........10

Mitchell v. Homfray, (1881) 8 Q.B.D. 587..............................................................................14

Montreal v. Montreal Locomotive Works Ltd, (1947) 1 D.L.R. 161......................................15

Olley v. Marlborough Court, [1949] 1 K.B. 532................................................................11, 12

vi


Petrie v. Lamont, (1842) C. Marsh.93 (Eng.)............................................................................1

Photo Production Ltd v. Securicor Transport Ltd (1980) UKHL 2.........................................12

Robinson v. The Post Office, (1974) 2 All E.R. (C.A.) 737......................................................9

Roe v. Ministry of Health, [1954] 2 All E.R. (C.A.) 131........................................................16

Slater v. Baker, 95 E.R. 860.......................................................................................................6

Spiliada Maritime Corp. v. Cansulex Ltd., [1987] A.C. (H.L.) 460..................................24, 25

Stapley v. Gypsum Mines, (1953) 2 All E.R. (H.L.) 478........................................................18

Suresh v. State of Tamil Nadu, A.I.R. 1997 S.C. 1889..............................................................3

Swadling v. Cooper, (1931) A.C. (H.L.) 1...............................................................................18

Taff Vale Railway Company v. Jenkins [1913] A.C. (H.L.) 1................................................21

Taylor v. Hollard, [1902] 1 K.B. 676.......................................................................................26

White House v. Jordan and Anr, 1980 (1) All E.R. 650............................................................3

OTHER CASES

Barber v. Lamb (1860) 8 C.B. (N.S.) 95..................................................................................26

Bisso v. Inland Waterways Corporation, 349 U.S. 85 (1955)............................................12, 13

Boyd v. Albert Einstein Medical Center, 547 A.2d 1229 (Pa. 1988).................................16, 17

Clark v. Southview Hospital& FamilyHealth Center, 1628 N.E.2d 46 (Ohio 1994)...............16

De Gortari v. Smithwick, [2000] 1 I.L.R.M. 463.....................................................................22

Edmunds v. Simmonds [2001] 1 W.L.R. 1003..................................................................21, 22

Federal Trade Commission v. Ticor Title Insurance Co., 504 U.S. 621 (1992)......................11

First National Bank of South Africa v. Rosenblum, 2001 (4) S.A. 189 (Appeal)...................13

Hansen v. Dixon (1906) 23 T.L.R. 56......................................................................................22

Henderson v. Stevenson, L. R. 2 H. L. (Scot.) 470..................................................................12

Huber v. Steiner, (1835) 2 Bing. N.C. 202........................................................................20, 21

vii


Hunter v. Hanley, 1955 S.L.T. 213............................................................................................2

Jackson v. Power, 743 P.2d 1376 (Alaska 1987).....................................................................16

Lanphier v. Phipos, (1838) 8 C. & P. 475..................................................................................6

Moody v. Cox, (1917) 2 Ch. 71...............................................................................................14

NellaThambi v. Ponnuswami, (1907) 1. L.R. 2 MAD 406......................................................22

Parker v. South Eastern Rail Co, [1877] 2 C.P.D. 416............................................................11

Samways v. WorkCover Queensland &Ors, [2010] Q.S.C. 127 (Canada)..............................13

Schleier v. Kaiser Foundation Health Plan, 876 F. 2d 174 (D.C. Cir. 1989)...........................16

Waterhouse v. Australian Broadcasting Corp., (1989) 86 A.C.T.R. 1...............................21, 22

ARTICLES-

Ailes, Substance and Procedure in the Conflict of Laws, 39 MICHIGAN LAW REVIEW 392

(1941)...................................................................................................................................22

Benjamin MS & Dr. Raju CB, Criminal Clinical Negligence: who watches the life saviour- a

critical appraisal, …(1) KARNATAKA LAW JOURNAL 27, 30 (2007)..................................15

Brian Hurwitz, Legal and Political considerations of clinical practical guidelines, 96 (3)

BRITISH MEDICAL JOURNAL 133, 136 (1999)........................................................................3

Civil Justice in England and Wales, (Oct. 22, 2014, 1:45 PM),

http://www.judiciary.gov.uk/about-the-judiciary/the-justice-system/jurisdictions/civil-

jurisdiction/....................................................................................................................23, 26

CrispianScully & Jose Bagan, Oral mucosal diseases: erythema multiforme, 46 (2) BR. J.

ORAL MAXILLOFAC SURG. 90, 94 (2008)..............................................................................4

Dirk K. Greineder, Generalist vs specialist medical care, 284 (22) THE JOURNAL OF

AMERICAN MEDICAL ASSOCIATION 2869, 2873 (2000)........................................................7

viii


DjillaliAnnane et al., Corticosteroid for severe sepsis and septic shock, a systematic review

and meta-analysis, 329 BRITISH MEDICAL JOURNAL 480, 483 (2004)..........................10, 19

Glossary of Drugs and Side Effects?,(Oct. 20, 2014, 5:55 PM),

http://www.vasculitis.org.uk/about-vasculitis/glossary-of-drugs..........................................8

H.B. Sales, Standard Form Contracts, 16 (3) THE MODERN LAW REVIEW 318, 323 (1953). 11

J.S. Pasricha, Management of toxic epidermal necrolysis, 56 (6) IND. J. DERMATOLOGY

VENEREOLOGY AND LEPROLOGY 458, 460 (1990)................................................................6

Janeen M. Carruthers, Substance and Procedure in The Conflict of Laws: A Continuing

Debate in Relation to Damages, 53 (3) THE INTERNATIONAL AND COMPARATIVE LAW

QUARTERLY 691, 692 (2004)...............................................................................................20

Leonard H. Calabrese & John D. Clough, Hypersensitivity vasculitis group (HVG): A case-

oriented review of a continuing clinical spectrum, 49 (1) CLEVELAND CLINIC QUARTERLY

17, 19-20 (1982).....................................................................................................................3

Luigi Naldi, The field and its boundaries, in the EVIDENCE BASED DERMATOLOGY 4 (Hywel

Williams et al. eds., 2014)......................................................................................................7

Maj Gen SP Kalra et al., The Relevance of General Medicine Today: Role of Super-

specialists vis-à-vis Internists, 4 (1) Journal Indian Academy of Clinical Medicine 14.......7

Mark R. Patterson, Standardization of Standard Form Contracts, 52 (2) WILLIAM AND MARY

LAW REVIEW 328 (2010).....................................................................................................11

Nadia Ali Asfar et al., Role of systemic steroids in the outcome of Stevens-Johnson syndrome

and toxic epidermal Necrolysis, 20 JOURNAL OF PAKISTAN ASSOCIATION OF

DERMATOLOGISTS 158, 160 (2010)........................................................................................5

P. J. Schwartz et al.,The legal implications of medical guidelines: A Task Force Report of the

European Society of Cardiology,,20 (16) EUR. HEART J. 1152, 1154 (1999).......................8

ix


Policy Document: The Role of General Practitioners in preventing disease and promoting

health in the Nordic countries,(Oct 15, 2014, 6:30

AM),www.nfgp.org/flx/nfgp/policy_papers..........................................................................7

PrashantTiwari et al.,Toxic epidermal necrolysis: an update, 3 (2) ASIAN PACIFIC JOURNAL

OF TROPICAL DISEASE 85, 91 (2013).....................................................................................5

Robert A. Seligson, Contractual Exemption for liability from negligence, 44 (1) CALIFORNIA

LAW REVIEW 121, 128 (1956).............................................................................................12

SandipanDhar, Systemic corticosteroids in toxic epidermal necrolysis, 62 (4) IND. J.

DERMATOLOGY VENEREOLOGY AND LEPROLOGY210, 220 (1996).......................................6

The Road to Becoming a Doctor,(Oct 6, 2014, 9:20 AM),

http://www.aamc.org/download/68806/data/road-doctor.pdf................................................7

Thomas Harr et al., Toxic Epidermal Necrolysis and Stevens-Johnson Syndrome, 5

ORPHANET JOURNAL OF RARE DISEASES 1, 3 (2010).............................................................3

V. Louis et al., The prevalence of nosocomial Infections in intensive care units in Europe:

European Prevalence of infection in Intensive care (EPIC) study, 274 (44) JAMA 639

(1995)...................................................................................................................................17

What is Vasculitis?,(Oct. 20, 2014, 5:45 PM),

http://www.vasculitis.org.uk/about-vasculitis/what-is-vasculitis..........................................4

WILLIAM MARTINDALE, MARTINDALE: THE EXTRA PHARMACOPOEIA1021 (James E.F.

Reynolds et al. eds., 31st ed. 1996).....................................................................................5, 7

WW Cook, “Substance” and “Procedure” in the Conflict of Laws, 42 YALE L.J. 333, 334

(1933)...................................................................................................................................20

BOOKS-

x


.C. GOVINDARAJ, THE CONFLICT OF LAWS IN INDIA: INTER- TERRITORIAL AND INTER-

PERSONAL CONFLICT 222 (1st ed. 2011)...............................................................................22

ANNE LEE, ADVERSE DRUG REACTIONS 140 (2005).................................................................3

ATULSETALVAD, CONFLICT OF LAWS 27 (1stedn. 2008)..........................................................21

AVTAR SINGH, CONTRACT AND SPECIFIC RELIEF 4 (10th ed. 2008)..................................12, 14

DAN LONGO et al., 1 HARRISON’S PRINCIPLE OF INTERNAL MEDICINE 307 (18th ed. 2010).....4

DICEY ET AL., THE CONFLICT OF LAWS 177 (Lawrence Collins ed.,14th ed. 2000)....20, 22, 24

G.C CHESHIRE ET AL., CHESHIRE AND NORTH’S PRIVATE INSTITUTIONAL LAW 67-8 (James

Facwett ed., 13th ed. 1999)...................................................................................................20

LOWELL A. GOLDSMITH et al., FITZPATRCICK’S DERMATOLOGY IN GENERAL MEDICINE 645

(8th ed. 2012).......................................................................................................................4, 9

N.H. Cox & I.H. Coulson, Diagnosis of skin diseases, in the 1 ROOKS’S TEXTBOOK OF

DERMATOLOGY 5.2 (Tony Burns et al. eds., 2010.................................................................3

PDR STAFF, PHYSICIAN'S DESK REFERENCE 2246-7 (47th ed. 1993).........................................5

PRINCIPLES AND PRACTICES OF DERMATOLOGY 998 (W.MitchellSams, Jr. & Peter J. Lynch

eds., 1996)..............................................................................................................................3

RATANLAL AND DHIRAJLAL, THE LAW OF TORTS 244 (G.P. Singh eds., 26th ed. 2013)..passim

SPENCER BOWER & TURNER, RES JUDICATA 9 (Sir Alexander Turner ed., 2nd ed.1969)........26

xi

Statement of Jurisdiction

STATEMENT OF JURISDICTION

The defendant has submitted in this dispute to this Hon’ble Court under its jurisdiction under

§ 5(2) of the Delhi High Court Act, 1966, read with § 9 of the Code of Civil Procedure, 1908,

which, inter alia, confers upon this Court the power to try all civil suits, the value of which

satisfies the pecuniary jurisdiction of this Court.

The defendant humbly submits to the jurisdiction of this Hon’ble Court and shall accept any

judgment of this Court as final and binding and shall execute them in its entirety and in good

faith.

xii

Statement of Facts

STATEMENT OF FACTS

I. PARTIES TO THE PETITION

The appellants in this case are Mr. Tony Stanley who is based in UK and had come to India

on a holiday. The collective respondents in this case are Dr. Sachin Pawar and Dr. Debjyoti

Sarkar, medical practitioners based in Kolkata.

II. SEQUENCE OF EVENTS

Mr. Tony Stanley and his wife Sharon Stanley, a UK based couple came to India in February

2014 for a period of one month. Thereafter, Mrs. Sharon Stanley began contracting acute

pain, fever and rashes.

Initial treatment given to Mrs. Sharon Stanley by Dr Sachin Pawar

Mr. Tony Stanley and his wife Sharon Stanley obtained the services of Dr. Sachin Pawar, a

doctor at Green Meadows Diagnostic Centre at Kolkata on 7 th February 2014. Dr. Sachin

Pawar, upon examination started administration of a steroid called Depomedrol of which 80

mg he administered straightaway and prescribed two injections of the same for 3 days. The

maximum dosage recommended for the said drug for any clinical condition however, is only

40-120 mg at a minimum of 1-2 weeks between such consecutive doses.

xiii

Statement of Facts

Treatment given to Mrs Sharon Stanley at Vasantech

When Sharon Stanley’s health showed no improvement, she was admitted to a hospital,

namely Vasantech Hospital, on 11th February. The hospital has been earlier shut down on

account of negligence that caused a fire killing 93 people that included mostly patients and

nurses.

Sharon Stanley and Tony Stanley were made to sign a document called ‘Patient Undertaking

and Guideline Document’, a standard document that gives a detailed account of essential

clinical procedures which Vasantech Hospitals undertakes, for evaluation. Also contained in

the document, are illustrations of self-management techniques in cases of medical

emergencies. All doctors as well as staff at ‘Vasantech Hospitals’ are bound by ‘Patient

Undertaking cum Guideline Document’. This document regulates all the doctors and staff,

and the terms state that the patient takes responsibility for risks associated with the medical

procedure.

In lieu of the ‘Patient Undertaking cum Guideline Document’, another steroid called

‘Prednisolone’ was administered to Sharon (in a tapering dose) which was in continuance

with treatment for allergic vasculitis which leads to inflammation and damage to blood

vessels. Meanwhile, Sachin Pawar had to leave for USA on a pre-arranged visit, he left

Sharon in care of a dermatologist named Dr. Debjyoti Sarkar.

Treatment by Dr. Debjyoti Sarkar and subsequent death of Mrs. Sharon Stanley.

Dr. Debjyoti Sarkar diagnosed Sharon’s condition as Toxic Epidermal Necrolysis (hereinafter

TEN) but did not make any drastic change in treatment already being given. TEN is a rare

xiv

Statement of Facts

disease caused by reaction to drugs which leads to detachment of upper layer of skin from the

lower, all over the body.

When no improvement was apparent, she was taken to ‘BIIMS Health’ Hospital in Gurgaon

where she died on 28th February 2014.

Suit by Mr. Tony Stanley against Dr. Sachin Pawar and Dr. Debjyoti Sarkar

Mr. Tony Stanley has sued Dr. Sachin Pawar and Dr. Debjyoti Sarkar (collectively

‘respondents’) for contributory medical negligence in the District Court, Kolkata, India. He

further intends to sue the respondents before County Court, Birmingham, UK as well.

The Respondents has refuted the claims made by the claimant and state that, they had adopted

the requisite standard of care in handling the patient and administration of the treatment in

terms of the ‘Patient Undertaking cum Guideline Document’.

Hence the present suit.

xv

Summary of Pleadings

SUMMARY OF PLEADINGS

I. THE DEFENDANTS WERE NOT COMPOSITELY NEGLIGENT IN CARRYING OUT THE

TREATMENT OF SHARON STANLEY.

The defendants were not compositely negligent in carrying out the treatment of Sharon

Stanley. To establish this, the defendants have submitted a two fold argument: (A)That the

defendants did exercise ordinary skill and care as their diagnosis was based on sound medical

prudence and the medication prescribed by them was in consonance with the established

medical practice, (B) that the defendants followed the accepted norms of the medical

profession as there was no obligation on the defendants to make a referral to a specialist and

the defendants were not supposed to give supportive treatment in lieu of the diagnosis carried

out by them, and (C)that the damage caused was not a direct consequence of the act of the

defendants as the damages were not foreseeable and the chain of causation was broken by the

intervening act of the claimant.



DOCUMENT.

The patients are exempted from any liability resulting from negligence. To establish this, the

defendants submit a three-fold argument: (A) that the Patient Undertaking cum Guideline

Document is a standard form contract enforceable by law owing to the disclosure of all the

risks and reasonable notice contemporaneous with the contract by the defendants, (B) that the

Patient Undertaking cum Guideline Document is not against public policy as it is not a harsh

contract and has been willingly assented to by the parties, and (C) the provisions of section

16 of the Indian Contract Act do not get attracted as the influence of the defendants over the

xvi


patients was not abused and betrayed and a full disclosure of all material information to the

contract was made.

III.VASANTECH HOSPITAL WOULD BE LIABLE FOR ANY NEGLIGENCE WHILE

CARRYING OUT THE TREATMENT.

Vasantech Hospital would be liable for any negligence for carrying out the treatment as:

(A)The hospital is vicariously liable for the conduct of the defendants as the hospital is

responsible for the quality of care that the doctors render to the patients, and (B) the hospital

would be directly liable for the nosocomial infections as it is the liability of the hospital to

prevent such infections, especially in cases where the patient has a high risk of infection due

to the nature of the disease suffered.

IV. THE LIABILITY OF THE DEFENDANTS WOULD GET REDUCED, IN ARGUENDO, OWING

TO THE CONTRIBUTORY NEGLIGENCE ON PART OF THE CLAIMANT.

There would be contributory negligence on part of the defendants as: (A) the plaintiff had

failed to take reasonable care of his wife’s safety, (B) that the negligence on part of the

claimant was substantial, and (C) the plaintiff did not take a reasonable course of action even

if a dangerous situation was created by the defendants. All these stand true as the movement

of the claimant’s wife was highly risky as there were huge chances of infection due to lack of

immunity owing to the fact that the deceased was suffering from TEN.

V. THE INDIAN LAW WOULD GOVERN THE CLASSIFICATION OF THE HEADS OF

DAMAGES.

The petitioners can only seek damages under as provided under the Indian law. For this, the

defendants submit a four-fold argument: (A) that the Indian conflict of law rules mandate that

xvii


the proper law would govern the substantive issues of the case, (B) the computation of

damages and the heads of damages is a substantive issue, (C) that in arguendo, even if the

heads of damages is a procedural issue, the Indian Courts being the lex fori would still apply

its procedure to the heads of damages, and (D) that the English Courts would have also

applied the substantive law of India, in case the present matter was filed in its Courts.

VI. CLAIMANTS CANNOT SUE THE DEFENDANTS IN ANOTHER JURISDICTION, WHILE A

LEGAL REMEDY IS SOUGHT IN THE INDIAN COURTS ALSO.

The claimants cannot sue the defendants in another jurisdiction. For this, the defendants have

given a two-fold argument: (A) that if the suit is filed during the pendency of the present

proceedings, the filing of the suit would be against the ends of just and the principle of forum

non- conveniens would be attracted, and (B) if a suit is filed after the conclusion of the

present proceedings, then the doctrines of Res Judicata and issue estoppel would be attracted,

the judgment of the Indian Court would lead to a merger of cause of action, and there is an

obligation on United Kingdom to recognize and enforce the Indian judgment under

international principles.

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PLEADINGS

I. THAT THE DEFENDANTS WERE NOT COMPOSITELY NEGLIGENT IN CARRYING

OUT THE TREATMENT OF SHARON STANLEY.

1. Where a person is injured as a result of negligence of two or more persons, it is said that

the person was injured on account of the composite negligence of these wrongdoers.1 All

persons who aid, counsel, direct or join in the committal of the negligence become tort-

feasors,2irrespective of the fact that whether the persons have acted in concert or

independently.3

2. It is submitted that the defendants are not liable for negligence in the treatment of the

claimant’s wife as they had [A] exercised ordinary skill and care, and [B] followed the

accepted norms of the medical profession. Moreover,[C] the damages caused were not a

direct consequence of the acts of the defendants.

A. THE DEFENDANTS HAD EXERCISED ORDINARY SKILL AND CARE.

3. The test to determine the negligence of a medical professional has been established in the

case of Bolam v. Friern Hospital Management Committee4as requiring the standard of an

ordinary skilled man exercising and professing to have the skills of a medical professional.

Negligence would mean failure to act in accordance with the standards of a reasonably

competent medical man at that time.5

4. A reasonable degree of care and caution needs to be maintained by the doctor while

carrying out the treatment.6 Neither the highest nor the lowest degree of care is stipulated

1 T.O. Anthony v. Karvarnan, (2008) 3 S.C.C. 748.2 Petrie v. Lamont, (1842) C. Marsh.93 (Eng.); Pugh v. Ashutosh Sen, (1928) 56 I.A. 93 (India).3 RATANLAL AND DHIRAJLAL, THE LAW OF TORTS 244 (G.P. Singh eds., 26th ed. 2013).4 (1957) 2 All E.R. 118 [hereinafter ‘Bolam’].5Jacob Mathew v. State of Punjab, (2005) 6 S.C.C. 1 [hereinafter ‘Jacob’]; INS Malhotra v. Dr. A. Kriplani, (2009) 4 S.C.C. 705.6 Dr. Laxman v. Dr. Trimbak, A.I.R. 1969 S.C. 128 (cited in A.S. Mittal v. State, A.I.R. 1989 S.C. 1570).

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in the test. Moreover, the care and competence would be judged in light of the facts and

circumstances of each case.7

5. It is submitted that the defendants exercised ordinary skill and care as the diagnosis carried

out by defendants was based on sound medical prudence[i];and the medication prescribed

by the defendants was in consonance with the established medical practice[ii].

i. The diagnosis carried out by the defendant was based on sound medical

prudence.

6. A doctor when consulted by a patient owes the patient a duty of care in deciding the kind

of treatment that needs to be given to the patient.8 The standard of the duty of care

required to be carried out should be that of an ordinary skilled medical professional.9 The

treatment adopted should be such that a responsible body of medical opinion would have

accepted it as proper.10Therefore, a medical practitioner would not be negligent simply

because a better alternative course of action or method of treatment was available or that a

more skilled doctor would not have chosen to follow or resort to that practice or procedure

which the accused medical practitioner had followed.11

7. It is submitted that in the realm of treatment and diagnosis, there is scope for genuine

difference of opinion and one doctor is clearly not negligent because his opinion differs

from that of the other doctor.12 Mere error of judgment would not bring the act of the

doctor within the ambit of negligence.13 The diagnosis of the disease lies within the scope

7 Id.8Id; State of Haryana v. Santra, A.I.R. 2000 S.C. 1888.9Maynard v. Midlands Regional Health Argument, (1985) 1 All E.R. (H.L.) 635 (appeal taken from Eng.).10 Id.11See Bolam, (1957) 2 All E.R. 118.12Hunter v. Hanley, 1955 S.L.T. 213; Kusum Sharma v. Batra Hospital, (2010) 3 S.C.C. 480.13 White House v. Jordan and Anr., 1980 (1) All E.R. 650.

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of the expertise of the doctor and the doctor could exercise discretion in such cases. 14

Moreover, the guidelines for treatment are only meant for assisting the medical

professionals. They cannot be used to mandate, authorize or outlaw treatment

options.15The only requirement is that the professional opinion relied upon by a doctor in

cases of diagnosis and treatment must be reasonable and responsible.16

8. Diagnosis of skin diseases is a cumbersome and complicated process.17 There may be

many overlapping symptoms where symptoms of two or more diseases could be visible

and consequently it may become extremely difficult to diagnose the disease

accurately.18Huge complexities arise in cases of diseases involving rashes, as in such it

becomes difficult to ascertain the exact cause of rashes,19thereby posing a substantial

chance of misdiagnosing.20

9. Toxic Epidermal Necrolysis (TEN) is not a very common disease and it occurs in the rarest

of rare cases in India.21 Initial symptoms can be unspecified and would generally include

fever, stinging eyes etc.22 Typically, these symptoms precede by a few days any cutaneous

manifestation, i.e. rashes.23 These are quite similar to the symptoms of allergic vasculitis,

14 Suresh v. State of Tamil Nadu, A.I.R. 1997 S.C. 1889; Master Abhishek Ahluwalia v. Sanjay Saluja, (2014) C.P.J. 290 (N.C.).15Brian Hurwitz, Legal and Political considerations of clinical practical guidelines, 96 (3) BRITISH MEDICAL JOURNAL 133, 136 (1999).16Bolitho v. City and Hackney Health Authority, (1997) 4 All E.R. (H.L.) 771 (appeal taken from Eng.).17 Leonard H. Calabrese & John D. Clough, Hypersensitivity vasculitis group (HVG): A case-oriented review of a continuing clinical spectrum, 49 (1) CLEVELAND CLINIC QUARTERLY 17, 19-20 (1982).18 N.H. Cox & I.H. Coulson, Diagnosis of skin diseases, in the 1 ROOKS’S TEXTBOOK OF DERMATOLOGY 5.2 (Tony Burns et al. eds., 2010).19ANNE LEE, ADVERSE DRUG REACTIONS 140 (2005).20 PRINCIPLES AND PRACTICES OF DERMATOLOGY 998 (W. Mitchell Sams, Jr. & Peter J. Lynch eds., 1996); Malay Kumar Ganguly v. Abani Roychowdhury and Anr. and Sukumar Mukherjee and Ors., (2004) I.L.R. 1 Cal. 332 [hereinafter ‘Malay Kumar Ganguly’].21Malay Kumar Ganguly, supra note 20.22 Thomas Harr et al., Toxic Epidermal Necrolysis and Stevens-Johnson Syndrome, 5 ORPHANET JOURNAL OF RARE DISEASES 1, 3 (2010).23 Id.

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whereby there is pain rash, fever etc.24Allergic vasculitis can be quite extensive involving

bullae formation, necrosis involving the skin, and mucous membrane.25Moreover, these

symptoms are also quite similar to Steven Johnson Syndrome and Erythema Multiforme

Major.26

10. Therefore, it is submitted that there could be genuine differences of opinion regarding the

diagnosis of a patient showing symptoms such as acute pain, fever and rashes. A drug

allergy gives rise to all varieties of skin rash in isolations or in various combinations,

along with varied symptoms such as fever, joint pains etc.27Further, the onset of TEN can

be sudden and acute.28

11. Hence, the diagnosis of claimant’s wife’s disease as allergic vasculitis was based on

sound medical prudence by application of ordinary skill and care, thereby not constituting

a negligent act.

ii. The medication prescribed by the defendant was in consonance with the

established medical practice.

12. It is submitted that the treatment carried out by a doctor needs to conform to the standard

of an ordinary competent medical professional.29Generally, there may be one or more

perfectly proper standards, and if the medical professional chooses to conform to any of

these proper standards, such act of the medical profession would not fall within the

domain of negligence.30

24 What is Vasculitis?,(Oct. 20, 2014, 5:45 PM), http://www.vasculitis.org.uk/about-vasculitis/what-is-vasculitis.252 LOWELL A. GOLDSMITH et al., FITZPATRCICK’S DERMATOLOGY IN GENERAL MEDICINE 645 (8th ed. 2012).26 Crispian Scully & Jose Bagan, Oral mucosal diseases: erythema multiforme, 46 (2) BR. J. ORAL MAXILLOFAC SURG. 90, 94 (2008).27 Malay Kumar Ganguly, supra note 20.28 1 DAN LONGO et al., 1 HARRISON’S PRINCIPLE OF INTERNAL MEDICINE 307 (18th ed. 2010); 2 LOWELL A. GOLDSMITH ET AL., supra note 25, at 651.29Bolam, (1957) 2 All E.R. 118 (cited in See Jacob Mathew, (2005) 6 S.C.C. 1).30 Id.

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13. Corticosteroids have been accepted as a treatment option for TEN as they suppress the

necrolytic process in the skin as well as internal organs.31Systematic steroids have been

part of the standard treatment in the early 1990’s.32Further, Glucocorticoid properties of

Corticosteroids are used to suppress the clinical manifestation of disease in a wide range

of disorders considered to have inflammatory and immunological components.33

14. The claimant’s wife was prescribed Depomedrol on 7th Feb.,34 while on the 11th, she was

prescribed Prednisolone, in a tapering dose, in continuation of her treatment for allergic

vascultis.35 The 2nddefendantcontinued the same treatment on his diagnosis of the disease

of the claimant’s wife as TEN.36

15. Both Depomedrol and Prednisolone are considered to be a having Gluococorticoid

properties that could be used to tackle inflammatory problems.37These drugs are usually

prescribed for various acute diseases like stevens johnsons syndrome, pemphigus, and

allergic vasculitis.38

16. The selection of the dose of corticosteroid is generally arbitrary and depends on the

severity of the disease.39 Moreover, steroids instituted in high doses early in the diseases

are opined to be highly helpful in preventing further tissue damage by the ongoing process

31 Nadia Ali Asfar et al., Role of systemic steroids in the outcome of Stevens-Johnson syndrome and toxic epidermal Necrolysis, 20 JOURNAL OF PAKISTAN ASSOCIATION OF DERMATOLOGISTS 158, 160 (2010)32 Prashant Tiwari et al.,Toxic epidermal necrolysis: an update, 3 (2) ASIAN PACIFIC JOURNAL OF TROPICAL DISEASE 85, 91 (2013).33 WILLIAM MARTINDALE, MARTINDALE: THE EXTRA PHARMACOPOEIA1021 (James E.F. Reynolds et al. eds., 31st ed. 1996).34 Moot Court Problem,¶ 2.35 Id.,¶ 6.36Id., ¶ 7.37 PDR STAFF, PHYSICIAN'S DESK REFERENCE 2246-7 (47th ed. 1993); Malay Kumar Ganguly, supra note 20.38 Id.39 Malay Kumar Ganguly, supra note 20.

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of TEN.40 Thus, the overall prognosis is much better in patients who are put on high dose

systematic steroids within 7 days of the development of TEN.41

17. It is submitted that there is no universally accepted protocol for the treatment of

TEN.42No specific drug could be mentioned that can be used at all stages in all the cases of

TEN.43Thus, there is a grey area in medical science with respect to the treatment of TEN.

18. Since, the defendants had initially diagnosed the disease to be allergic vasculitis and

considered it to be at an aggravated stage, it was reasonably prudent of the defendants to

administer depomedrol and prednisolone. Thus their conduct would fall outside the

purview of negligence.

B. THE DEFENDANTS HAD FOLLOWED THE ACCEPTED NORMS OF MEDICAL PRACTICE.

19. It is submitted that a medical professional is supposed to carry out the treatment as per the

standards that have been recognized by reasonably competent medical men.44 A fair,

reasonable and competent degree of skill needs to be used in consonance with these

standards.45As long as the doctor acts in a manner that is acceptable to the medical

profession, his actions would not attract tortious liability.46

20. It is submitted that the defendants followed the established and accepted norms of

medical practice as the 1st defendant was under no obligation to make a referral to a

specialist at the outset of the treatment (i); and the defendants were not supposed to give

supportive treatment in lieu of the diagnosis carried out by them through application of

ordinary care and skill (ii).

40 Sandipan Dhar, Systemic corticosteroids in toxic epidermal necrolysis, 62 (4) IND. J. DERMATOLOGY VENEREOLOGY AND LEPROLOGY210, 220 (1996).41 J.S. Pasricha, Management of toxic epidermal necrolysis, 56 (6) IND. J. DERMATOLOGY VENEREOLOGY AND LEPROLOGY 458, 460 (1990) 42 Malay Kumar Ganguly, supra note 20.43 Id.44Bolam,(1957) 2 All E.R. 118; See Jacob Mathew, (2005) 6 S.C.C. 1.45 Lanphier v. Phipos, (1838) 8 C. & P. 475; Slater v. Baker, 95 E.R. 860.46 RATANLAL AND DHIRAJLAL, supra note 3, at 553.

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i. The 1st defendant was under no obligation to make a referral to a specialist.

21. It is submitted that general practitioners play a major role in preventive health care, both

in setting the terms as well as putting them into practice.47 These medical professionals

cover a broad ambit of medical field, thereby covering most of the common health

problems, along with complicated internal medicine matters.48In general, diagnosing a

purported dermatological ailment does not require any high- technology clinical practice.49

22. Specialists on the other hand deal with specific types of illnesses and problems that affect

specific tissues or organ systems in the body.50With growing sophistication of technology,

the super-specialists have become increasingly dependent on technology/instruments to

make a diagnosis,51consequently increasing the cost associated with the diagnosis and the

subsequent treatment. Also, no amount of technological sophistication can replace

information derived from history and physical examination.52

23. In the present case, rashes, fever and acute pain were diagnosed to be indicative of

allergic vasculitis by the 1st defendant. The said disorder is an allergic and inflammatory

condition of the blood vessels in the body that can affect not only the blood vessels of the

skin but also any internal vital organs, which might consequently even lead to the death of

a patient at any point of time.53 Thus it is not strictly a dermatological disorder,54 and

would fall within the ambit of the functioning of the general practitioners.

47Policy Document: The Role of General Practitioners in preventing disease and promoting health in the Nordic countries, (Oct 15, 2014, 6:30 AM),www.nfgp.org/flx/nfgp/policy_papers.48The Road to Becoming a Doctor, (Oct 6, 2014, 9:20 AM), http://www.aamc.org/download/68806/data/road-doctor.pdf.49 Luigi Naldi, The field and its boundaries, in the EVIDENCE BASED DERMATOLOGY 4 (Hywel Williams et al. eds., 2014)..50 Spring Meadows Hospital & another v. Harjol Ahluwalia & Anr.,(1998) 4 S.C.C. 39.51 Maj Gen SP Kalra et al., The Relevance of General Medicine Today: Role of Super-specialists vis-à-vis Internists, 4 (1) Journal Indian Academy of Clinical Medicine 14, 15.52 Dirk K. Greineder, Generalist vs specialist medical care, 284 (22) THE JOURNAL OF AMERICAN MEDICAL ASSOCIATION 2869, 2873 (2000).53 Malay Kumar Ganguly, supra note 20; MARTINDALE, supra note 33.54 Id.

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24. It is submitted that the assessment of the condition of the patient is well covered by the

domain of discretion of the medical professional.55Therefore, deviations from specific

guidelines, such as those of referral, may be possible owing to specific and compelling

reasons.56

25. Therefore, it is submitted that the 1st defendant was functioning well within the accepted

norm of medical practice insofar he carried out the treatment of the claimant’s wife. In

fact, when the patient was observed to be not recovering, she was admitted to another

hospital, where the 1st defendant himself left the patient under the care of the 2nd defendant,

a dermatologist.57 Thus, the negligence with respect to non-referral of the patient to a

specialist cannot be imputed on the 1st defendant.

ii. The defendants were not supposed to give supportive treatment in lieu of the

diagnosis carried out by them.

26. The claimant’s wife visited the 1st defendant on 7th February complaining acute pain,

fever and rashes. The common symptoms of allergic vasculitis are fever, rashes, joint

pains, itching etc.58 On the exercise of ordinary skill and care as required from a medical

practitioner59, the 1st defendant had diagnosed the disease to be allergic vasculitis.60 It is

submitted that the treatment related to allergic vasculitis does not entail supportive care as

an essential component. Therefore, supportive care did not have to be specifically included

in the treatment.

55 P. J. Schwartz et al., The legal implications of medical guidelines: A Task Force Report of the European Society of Cardiology,,20 (16) EUR. HEART J. 1152, 1154 (1999).56 Id.57 Moot Court Problem, ¶ 7.58Glossary of Drugs and Side Effects?,(Oct. 20, 2014, 5:55 PM), http://www.vasculitis.org.uk/about-vasculitis/glossary-of-drugs.59See Jacob Mathew, (2005) 6 S.C.C. 1.60 Moot Court Problem,¶ 6.

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27. Further, even TEN does not have a specific treatment,61 as there is no fixed regime

applicable at all stages of TEN.62 In light of the prevalence of a grey area in matters of

treatment of TEN, even the 2nd defendant could not be held to be liable for not providing

supportive therapy.

C. THE DAMAGES CAUSED ARE NOT A DIRECT CONSEQUENCE OF THE ACT OF THE

DEFENDANTS.

28. It is submitted that the damages caused are not a direct consequence of the act of the

defendants as the damages were not foreseeable (i);and the chain of causation was broken

by the intervening act of the claimant (ii).

i. The damages were not foreseeable.

29. A person is responsible only for the consequences that are not remote.63The principle of

remoteness would be attracted if the damages are far fetched and could not have been

foreseen.

30. It is submitted that since the treatment of the claimant’s wife was carried out by exercise

of ordinary care and skill and in accordance with the accepted principles of medical

profession, the death of the claimant’s wife was clearly not foreseeable, thereby bringing

the act of the defendants outside the purview of the medical negligence.

ii. The intervening act of the claimant broke the chain of causation.

31. It is submitted that the damages resulting to the claimant after the chain of causation set in

motion by the defendant’s wrongful act is snapped if it too remote and consequently the

claimant would not be qualified for the award of damages against the defendants.64 The

snapping of the chain of causation may be caused by either a human action of a natural

61 2 LOWELL A. GOLDSMITH et al.,supra note, at 651.62 Malay Kumar Ganguly, supra note 20.63RATANLAL AND DHIRAJLAL, supra note3 at 190.64 Robinson v. The Post Office, (1974) 2 All E.R. (C.A.) 737.

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event.65 Thus, an unreasonable act done by the resulting in further damage breaks the chain

of causation.66

32. The shifting of the claimant’s wife from Vasantech Hospital in Kolkata to BIMS Health

Hospital in Gurgaon, where she died on the 28thof Feb.67 posed huge risks of developing

infections, such as sepsis, during the transfer due to exposure.68 The chances of any

infection developing in case of TEN are quite high due the lack of immunity. 69 Thus, the

injury caused by the claimant’s unreasonable conduct cannot be attributed to the

defendant’s wrongful act, as the chain of causation was broken due to the wrongful act of

the claimant.70 Hence, the defendants would not be liable for negligence, leading to the

death of the claimant’s wife.

65RATANLAL AND DHIRAJLAL, supra note3 at 195.66 M/s Churasia & Co. v. Smt. Pramila Rao, (1974) A.C.J. 481.67 Moot Court Problem, ¶ 7.68Malay Kumar Ganguly, supra note 20.69 Djillali Annane et al., Corticosteroid for severe sepsis and septic shock, a systematic review and meta-analysis, 329 BRITISH MEDICAL JOURNAL 480, 483 (2004).70Mckew v. Holland & Hannen & Cubbits (Scotland) Ltd, (1969) 3 All E.R. (H.L.) 1621 (appeal taken from Scot.).

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DOCUMENT.

33. It submitted that the defendants are exempted from any liability resulting from negligence

as [A] the Patient Undertaking cum Guideline Document is a standard form contract

enforceable by law, [B] it is not against the public policy, and [C] the contract does not

attract the provisions of § 16 of the Indian Contract Act, 1872.

A. THE PATIENT UNDERTAKING CUM GUIDELINE DOCUMENT IS A STANDARD FORM

CONTRACT ENFORCEABLE BY LAW.

34. Standard form contracts are a common feature of commercial relationships,71 and are

legally binding agreement between two parties.72 Thus, through the standard form contract,

an enterprise chooses to use a single form contract for multiple

transactions.73Fundamentally, the standardization of contracts is a standardization of the

package offered to customers, in much the same way, as is standardization of a product.74

35. It is submitted that a person who signs a contract must know that he/she signs it for some

purpose, and the rights of the person would be regulated as per the terms of the standard

form contract.75 Thus, unless the signature is shown to be obtained by fraud or

misrepresentation, the contract cannot be set aside.76 The terms of the contract cannot be

aside solely on the basis of the unmindfulness of the plaintiff.77 Thus, the terms of all such

agreements would be binding if they are made by the free consent of the parties competent

71 Mark R. Patterson, Standardization of Standard Form Contracts, 52 (2) WILLIAM AND MARY LAW REVIEW 328 (2010).72 Id.73H.B. Sales, Standard Form Contracts, 16 (3) THE MODERN LAW REVIEW 318, 323 (1953).74Federal Trade Commission v. Ticor Title Insurance Co., 504 U.S. 621 (1992).75Lewis v. Great Western Rly, (1877) 3 Q.B.D. 195.76Olley v. Marlborough Court, [1949] 1 K.B. 532.77Parker v. South Eastern Rail Co, [1877] 2 C.P.D. 416.

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to contract,78 for a lawful consideration and with a lawful object,79 and are not expressly

declared to be void.80

36. The determination of the validity of contracts exempting a party from liability for

negligence is closely allied to the basic theory of mutual assent.81 An exemption clause can

be validly put in the contract if a reasonable notice is given for the exemption clause to the

plaintiff.82 Moreover such reasonable notice should be contemporaneous with the

contract.83

37. In fact, no contract can be set-aside solely in the basis of the presence of an exemption

clause.84 Moreover, the intention of the parties to the contract can override even a

fundamental breach of contract.85

38. The Patient Undertaking cum Guideline Document was a standard form contract whereby

it had been clearly mentioned that all the risks associated with the treatment and operation

would ultimately rest with the concerned patient.86 Thus, a reasonable notice

contemporaneous with the contract has been provided. Moreover the contract was made

with free consent, lawful consideration and a lawful object. Therefore, the Patient

Undertaking cum Guideline Document in a valid standard form contract and thus its terms

cannot be deviated from.

78 C.K. Asati v. Union of India, A.I.R. 2005 M.P. 96; Patel Engineering Ltd v. National Highways Authority of India, A.I.R. 2005 Del. 298.79 Mahesh Chandra v. Zila Panchayat, A.I.R. 1997 All. 248 (cited in D. Rajamani v. Azhar Sultana, A.I.R. 2005 A.P. 260).80 AVTAR SINGH, CONTRACT AND SPECIFIC RELIEF 4 (10th ed. 2008).81 Robert A. Seligson, Contractual Exemption for liability from negligence, 44 (1) CALIFORNIA LAW REVIEW 121, 128 (1956).82 Henderson v. Stevenson, L. R. 2 H. L. (Scot.) 470; M/s Prakash Road Lines (P) Ltd v. HMT Bearing Ltd, A.I.R. 1999 A.P. 106.83Olley v. Marlborough, [1949] 1 K.B. 532.84Bisso v. Inland Waterways Corporation, 349 U.S. 85 (1955).85 Photo Production Ltd v. Securicor Transport Ltd (1980) UKHL 2 (appeal taken from Eng.).86 Moot Court Problem, ¶ 5.

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B. THE STANDARD FORM CONTRACT IS NOT AGAINST THE PUBLIC POLICY.

39. It is submitted that public policy in an ‘untrustworthy guide'87. The primary duty of the

court is to enforce a promise that the parties have made and to uphold the sanctity of

contract88. Public policy is only against harsh contracts that are brought forth, thereby,

aiding an individual who has not willingly assented to the contract.89

40. An agreement to give up one’s legal right would not be hit by § 23 for contravening the

public policy.90 Thus, the doctrine of public policy would not ipso facto be attracted if an

express provision of exemption were present in the contract.91

41. A contractual indemnity is sufficient to transfer liability from the tort-feasor to the

indemnifier.92 Thus, the language of the clause and the agreement as a whole is to be seen

to ascertain whether the exemption clause is valid or not.93

42. The ‘Patient Undertaking cum Guideline Document’ was a valid agreement through

which medical services were to be given to the patient.94 The patients could evaluate the

clinical procedures as well as the self-management techniques.95 The exemption clause

was part of the valid agreement that stipulates that the risk of treatment would lie with the

patients.96 Thus, it is not a harsh contract and has been willingly assented to and the

presence of an exemption clause would not ipso facto attract the provisions of the doctrine

of public policy.

87 Gherulal v. Mahadeodas Maiya, A.I.R. 1959 S.C. 781.88 Id.89 Id.90 M.K. Usman Koya v. C.S Santha, A.I.R. 2003 Ker. 191.91 B.O.I. Finance Ltd. v. Custodian, (1997) 10 S.C.C. 488.92 Samways v. Work Cover Queensland & Ors., [2010] Q.S.C. 127 (Canada).93 First National Bank of South Africa v. Rosenblum, 2001 (4) S.A. 189 (Appeal).94 Moot Court Problem, ¶ 4.95 Id.96Id., ¶ 5.

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C. THE CONTRACT DOES NOT ATTRACT THE PROVISIONS OF § 16 OF THE INDIAN

CONTRACT ACT 1872.

43. It is submitted that there could be certain kinds of agreements where the parties are so

related to each other that one party can dominate the will of the other party.97 The person

who occupies the superior position may prevail upon the other to obtain his consent to the

agreement.98 Thus, the provisions of Indian Contract Act dealing with undue influence

would be attracted if the party has not made full disclosure of all the material facts to the

contract,99 as the confidence is reposed and betrayed.100

44. A doctor has a fiduciary relationship with a patient as it is built upon trust and

confidence.101In the present case, the influence of the defendants over the patient was not

abused and the confidence was not betrayed, insofar as full disclosure of all material

information to the contract was made through the Patient Undertaking cum Guideline

Document. Therefore, the actions of the defendants are protected from the provisions of § 16

of the Indian Contract Act.

97 AVATAR SINGH, supra note , at 181.98Ashok Kumar Patil v. New India Assurance Co., A.I.R. 2007 Del. 136.99Moody v. Cox, (1917) 2 Ch. 71.100 George Smith v. William Kay, 11 E.R. 299.101Mitchell v. Homfray, (1881) 8 Q.B.D. 587.

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III. VASANTECH HOSPITAL WOULD BE LIABLE FOR ANY NEGLIGENCE WHILE

CARRYING OUT THE TREATMENT.

45. Hospitals’ liability with respect to medical negligence can be either direct or vicarious.102

Direct liability refers to the deficiency of the hospital itself in providing safe and suitable

environment for treatment as promised. Vicarious liability means the liability of an

employer for the negligent act of its employees.103 An employer is responsible not only for

his own acts of commission and omission but also for the negligence of its employees, so

long as the act occurs within the course and scope of their employment.104

46. It is submitted that the hospital is [A] vicariously liable for the conduct of the defendants;

and [B] directly liable for the nosocomial infections.

[A] VICARIOUSLY LIABLE FOR THE CONDUCT OF THE DEFENDANTS.

47. The existence of a right in the employer to supervise and control the execution of the

work done by the employee is the prima facie test to impute liability on the employer for

the wrongful acts of the employee.105 However, in the case of skilled and professional

work, the test would also include seeing the ownership of tools, chance of profit and risk

of loss.106

48. The relationship of a doctor and a hospital clearly falls within the broad domain of this

test. The persons who run the hospital are in law under the same duty as the humblest

102M.S. Benjamin & Dr. Raju CB, Criminal Clinical Negligence: who watches the life saviour- a critical appraisal, (1) KARNATAKA LAW JOURNAL 27, 30 (2007).103 Id.104 Id.105 Dharangadhara Chemical Works Ltd v. State of Saurashtra, A.I.R. 1957 S.C. 264; Shankar Balaji Waje v. State of Maharashtra, A.I.R. 1962 S.C. 517; Employees State Insurance Corporation v. Apex Engineering Pvt. Ltd., (1997) 9 J.T. 54 at 62.106Montreal v. Montreal Locomotive Works Ltd, (1947) 1 D.L.R. 161 (Eng.).

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doctor.107 The hospital cannot escape liability by taking the excuse that there is no master-

servant relationship between the hospital and the doctor.108

49. In the present case, prednisolone was administered under the authority given by the

Patient Undertaking cum Guideline Document to the doctors, which was meant to regulate

the conduct and affairs of the doctors and the other staff of the hospital.109 Prednisolone

was administered while the claimant’s wife was under the care of the 1st defendant, who

was bound by the Patient Undertaking cum Guideline Document. Thus, the hospital would

be liable for any negligence carried out on part of the 1st defendant.

50. Furthermore, 2nd defendant, who was also bound by the Patient Undertaking cum

Guideline Document, was given the care of the claimant’s wife while she was in

Vasantech. Therefore, any negligence on part of the 2nd defendant would also fall squarely

within the domain of the test of vicarious liability and hence the hospital would be held

liable.

51. It is submitted that hospital is liable for its entire staff, irrespective of whether they are

permanent or temporary or visiting, servants or agents of the hospital.110 The hospital is

responsible for the quality of care that the doctors of the hospital render to the patients.111

52. Thus, even if the defendants were said to be merely having a contract for service or a

temporary or visiting doctors, the hospital can also be held liable for an independent

consultant’s malpractice.112In such a situation, there is presence of a contractual

relationship of the patient with the hospital and not the independent consultant.113

107 Joseph Alias Pappachan and Ors v. Dr. George Moongely, A.I.R. 1994 Ker. 289.108 Aparna Dutta v. Apollo Hospitals Enterprises Ltd., A.I.R. 2000 Mad. 340.109 Moot Court Problem, ¶ 6.110Roe v. Ministry of Health, [1954] 2 All E.R. (C.A.) 131.111Jackson v. Power, 743 P.2d 1376 (Alaska 1987); Clark v. Southview Hospital & Family Health Center, 1628 N.E.2d 46 (Ohio 1994).112Schleier v. Kaiser Foundation Health Plan, 876 F. 2d 174 (D.C. Cir. 1989).113Boyd v. Albert Einstein Medical Center, 547 A.2d 1229 (Pa. 1988).

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However, the consultant is mandated to work within the framework and guidelines

provided by the hospital and thus the test of vicarious liability in cases of professionals is

satisfied in these cases.114The hospital cannot escape liability by mere statement that it

only provided infrastructural facilities, services of nursing staff, supporting staff and

technicians and that it cannot suo moto perform or recommend any operation/

amputation.115

[B] DIRECT LIABILITY FOR THE NOSOCOMIAL INFECTIONS

53. A hospital would also be liable for all the nosocomial infections occurring during the

course of the treatment.116 Infections are considered nosocomial if they first appear 48

hours or more after hospital admission or within 30 days after discharge.117 Thus, it

becomes the liability of the hospital to prevent such infection, especially in the cases

where the patient has high risk of infection due to the nature of disease suffered.118

54. It has also been clearly stated that Vasantech Hospital had happened to be earlier shut

down on grounds of negligence in 2012 after a fire gutted one of its buildings.119 93 people

were killed in the fire, mostly patients and nurses.120 Thus there has been a situation of

negligent behaviour on part of the hospital in the past that is clearly indicative of the fact

that the infrastructure of the hospital and functioning of the hospital is not as per the

desired standards. Thus, this stands as yet another testimony of the fact that the hospital

has been directly negligent is taking care of the patient and thus the nosocomial infections

114 Id.115Smt. Rekha Gupta v. Bombay Hospital Trust and Anr, (2003) C.P.J. 160 N.C.116 Sukumar Mukherjee and Baidyanath Halder, supra note.117 V. Louis et al., The prevalence of nosocomial Infections in intensive care units in Europe: European Prevalence of infection in Intensive care (EPIC) study, 274 (44) JAMA 639 (1995).118 Sukumar Mukherjee and Baidyanath Halder, supra note.119Id., ¶ 3.120 Id.

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developed during the course of the treatment would have probably led to the death of the

claimant’s wife.

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IV. THE LIABILITY OF THE DEFENDANTS WOULD GET REDUCED, IN ARGUENDO,

OWING TO THE CONTRIBUTORY NEGLIGENCE ON PART OF THE CLAIMANT

55. It is submitted that even if the defendants are held to be liable for negligence, their

liability would get reduced owing to the presence of contributory negligence on part of the

claimant as [A] he had failed to take reasonable care of his wife’s safety, [B]he was

substantially negligent, and [C]he did not take the safest course of action, even if a

dangerous situation was created by the defendants.

A. CLAIMANT FAILED TO TAKE REASONABLE CARE OF HIS WIFE’S SAFETY.

56. If the claimant fails to take reasonable care of the safety of the deceased, then, that

becomes a contributory factor for the death or injury. Thus, where the acts of negligence,

though successive, but are still close together in time and interact with each other, they

operate as co-operating factors in the final consequence.121 The damages in such cases get

apportioned as per the contribution of both the parties to the total loss suffered by the

parties.122

B. THE NEGLIGENCE ON PART OF THE CLAIMANT WAS SUBSTANTIAL.

57. It is submitted that for an act to be considered as one contributing to the negligence, the

act should be of substantial negligence and should have a substantial impact on the

damage suffered.123 The question, therefore, in all cases is not as to who had the last

opportunity of avoiding the mischief, but as to whose act had caused the wrong.124 Thus, a

substantial contribution needs to be made to the damage suffered by the deceased.125

121American Main Line Ltd. v. Afrika, (1937) A.I.R. 168 (PC) (appeal taken from Hongkong).122 Municipal Corporation of Greater Bombay v. Lakshman Iyer, (2003) 8 S.C.C. 731.123 Swadling v. Cooper, (1931) A.C. (H.L.) 1 (appeal taken from Eng.); Stapley v. Gypsum Mines, (1953) 2 All E.R. (H.L.) 478 (appeal taken from Eng.).124 Boy Andrews v. St. Roguvald, (1947) 2 All E.R. (H.L.) 350 (appeal taken from Scot.).125 Id.

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C. THE CLAIMANT IS LIABLE FOR NOT TAKING A REASONABLE COURSE OF ACTION

EVEN IF A DANGEROUS SITUATION WAS CREATED BY THE DEFENDANTS.

58. If a dangerous situation is ascribable to the negligent act of the defendant, the injured

person needs to take a course of action that would have been taken by a person of ordinary

prudence under the same trying conditions.126 If such a course of action were not taken,

then the injured person would be considered liable of contributory negligence.127

59. It is submitted that in the present case, the movement of the claimant’s wife was highly

risky as there are huge chances of infection due the lack of immunity in cases of TEN. 128

These infections that develop after the onset of TEN majorly contribute to the death of the

person in cases of TEN. Thus the act of the claimant in moving Sharon Stanley from

Kolkata to Gurgaon contributed substantially to the negligence, insofar it exposed her to

insurmountable risks.

60. Thus, the action of the claimant would fall within the domain of contribution negligence,

thereby necessitating the apportionment of damages between the parties.

126 RATANLAL AND DHIRAJLAL, supra note 3, at 595.127 Id.128 Djillali Annane et al., supra note 69, at 484; Malay Kumar Ganguly, supra note20.

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V. THAT THE INDIAN LAW WOULD GOVERN THE CLASSIFICATION OF THE

HEADS OF DAMAGES.

61. Before any proceeding begins in a conflict of laws case, it is the task of the forum to

characterize an issue as substantive or procedural.129 While substance is broadly a matter

of right,130 procedure is broadly a matter of remedy131 in a conflict of laws

case.132Characterization of an issue on the basis of Indian conflict of rules133is crucial for

the forum deciding the case so as to ascertain the governing law.134

62. It is submitted that the petitioners can only seek damages as provided under the Indian

law because in a suit filed before an Indian Court containing a foreign element, [A] the

Indian conflict of law rules mandate that the proper law would govern the substantive

issues of the case, [B] the computation of damages and the heads of damages is a

substantive issue, arguendo [C] even if the heads of damages is a procedural issue, the

Indian Courts being the lex fori would still apply its procedure to the heads of damages;

and [D] the English Courts would have also applied the substantive law of India, in case

the present matter was filed in its Courts.

129 In Re Fuld’s Estate (No. 3), [1966] 2 W.L.R. 717 at 695 (Eng.); Hamlyn & Co v. Talisker Distillery, (1894) 21 R (H.L.) 21 (appeal taken from Scot.); Janeen M. Carruthers, Substance and Procedure in The Conflict of Laws: A Continuing Debate in Relation to Damages, 53 (3) THE INTERNATIONAL AND COMPARATIVE LAW QUARTERLY 691, 692 (2004).130 WW Cook, “Substance” and “Procedure” in the Conflict of Laws, 42 YALE L.J. 333, 334 (1933).131Id.132Janeen M. Carruthers, supra note129, at 693.133 Smt. Satya v. Shri Teja Singh, A.I.R 1975 S.C. 105.134Huber v. Steiner, (1835) 2 Bing. N.C. 202(cited in 1 DICEY ET AL., THE CONFLICT OF LAWS 177 (Lawrence Collins ed.,14th ed. 2000); Chaplin v. Boys, [1971] A.C. 356 (H.L.) (appeal taken from Eng.); G.C CHESHIRE ET AL., CHESHIRE AND NORTH’S PRIVATE INSTITUTIONAL LAW 67-8 (James Facwett ed., 13th ed. 1999).

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A. The Proper Law of the Dispute is the Substantive Laws of India.

63. Generally, all matters of substance are governed by the lex causae, which is the law

governing the cause of action.135

64.In India, in the conflict of laws cases involving torts, the substantive law of the lex loci

delicti i.e.the place where the tort was committed, is the lex causae(law of the dispute).136

B. Ascertaining the Heads of Damages is a Substantive Issue.

65. The English common law characterizes the question of classification of heads of damages

recoverable as a substantive issue,137 though computation of damages under those heads

has been classified as a procedural issue.138

66. At common law, no damages, for instance, have been awarded on the ground of

bereavement.139 The purpose of damages for bereavement made recoverable is regarded as

constituting compensation for all non- pecuniary loss suffered by the surviving relatives

including “grief” or “mental suffering”.140 Therefore, the common law position that is not

based on any statute, when applied to India, does not lead any award of damages on the

ground of bereavement.

67. The Supreme Court of India has also not awarded damages under the head of ‘emotional

distress, pain and suffering of the claimant’ in a similar case where the death of the

claimant’s wife was caused due to negligence of the doctors treating her, on the ground

135 AK Investment CJSC v. Kyrgyz Mobil Tel. Ltd., [2011] UKPC 7 (appeal taken from Kyrgyzstan); Harding v. Wealands, [2006] UKHL 32 (appeal taken from Eng.); See Huber, (1835) 2 Bing. N.C. 202.136ATULSETALVAD, CONFLICT OF LAWS 27 (1stedn. 2008).137See Chaplin, [1971] A.C. 356 (H.L.)(cited in Waterhouse v. Australian Broadcasting Corp., (1989) 86 A.C.T.R. 1 (Australia); Edmunds v. Simmonds, [2001] 1 W.L.R. 1003; See Harding, [2006] UKHL 32.138See Harding, [2006] UKHL 32; See Chaplin, [1971] A.C. 356 (H.L.).139 Blake v. Midland Railway Company, [1852] 18 (Q.B.) 93; Taff Vale Railway Company v. Jenkins [1913] A.C. (H.L.) 1 (appeal taken from Eng.); Baker v. Dalgleish Steam Ship Company, [1922] 1 K.B. 361; Davies v. Powell Duffryn Associated Collieries Ltd., [1942] A.C. (H.L.) 601 (appeal taken from Eng.); Hinz v Berry [1970] 2 Q.B. 40..140 Law Commission of UK, Report on Personal Injury Litigation - Assessment of Damages, at 30- 3(1973); 148 PARL. DEB, H.C. (1989) 558(U.K.); 148 PARL. DEB, H.C. (1989) 519-20(U.K.)..

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that such a claim bears no direct link with the negligence caused by the defendant

doctors.141

C. ARGUENDO, IF THE HEADS OF DAMAGES IS A PROCEDURAL ISSUE, LEX FORI APPLIES.

68. It is a universally admitted and generally applied principle that the procedure is governed

by the lex fori.142The position of common law is followed and consequently if a foreign

party files an action in India, the lex fori will apply to the ‘procedural’ matters in India.143

69. Therefore, if the classification of heads of damages were a procedural issue, then, India

being the lex fori, would apply its own procedure to such issues.

D. ENGLISH COURTS WOULD HAVE ALSO APPLIED THE HEADS OF DAMAGES AS

PROVIDED UNDER THE SUBSTANTIVE LAW OF INDIA.

70. The Rome II Regulation binding on the UK mandates that the law applicable to a non-

contractual obligation arising out of a tort/ delict shall be the law of the country in which

the damage occurred.144

71. Since the issue of classification of heads of damages recoverable is a substantive

issue,145the necessary consequence would be that the UK Courts would apply the

substantive law of the place where the damage occurred.

72. In the present case, the claimant’s case is that the direct damage of the death of the Mrs.

Stanley occurred in India. Therefore, even if a suit were instituted in UK, still the UK

141 Dr. Balram Prasad v. Dr. Kunal Saha and Ors.,(2014) 1 S.C.C. 384.142 Ailes, Substance and Procedure in the Conflict of Laws, 39 MICHIGAN LAW REVIEW 392 (1941) (cited in 2 DICEY ET AL., supra note134); Hansen v. Dixon (1906) 23 T.L.R. 56 (cited in De Gortari v. Smithwick, [2000] 1 I.L.R.M. 463 (Ireland)).143Nella Thambi v. Ponnuswami, (1907) 1. L.R. 2 MAD 406; Ramanathan Chettiar v. Somasundaram Chettiar, A.I.R. 1964 Mad. 527; V.C. GOVINDARAJ, THE CONFLICT OF LAWS IN INDIA: INTER- TERRITORIAL AND INTER- PERSONAL CONFLICT 222 (1st ed. 2011); Law Commission of India, Transnational Litigation: Conflict of Laws- Law of Limitation, 193rd Report, at 2-3.144Regulation (EC) No 864/2007, 2007 O.J. (L 199/40) art. 4.145See Chaplin, [1971] A.C. 356 (H.L.)(cited in See Waterhouse, (1989) 86 A.C.T.R. 1 (Australia); See Edmunds, [2001] 1 W.L.R. 1003; See Harding, [2006] UKHL 32.

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court would have applied the Indian substantive law to ascertain the recoverable heads of

the damages.

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VI. THAT THE CLAIMANTS CANNOT SUE THE DEFENDANTS IN ANOTHER

JURISDICTION, WHILE A LEGAL REMEDY IS SOUGHT IN THE INDIAN COURTS

ALSO.

73. The civil justice system in United Kingdom is mainly dealt by the County Courts.146

Therefore, if the claimant initiates another action in the UK County Court against the

defendants, he would undertake such action at either of the two timings: [A] during the

pendency of the present proceedings or [B] after the conclusion of the present suit.

A. SUIT FILED DURING THE PENDENCY OF THE PRESENT PROCEEDINGS.

74. When a Court restrains a party to a suit/proceeding before it from instituting or

prosecuting a case in another court including a foreign court, it does so by granting an

anti-suit injunction under Order 39 Rules 1 and 2 of the Code of Civil Procedure

restraining the claimant from claiming any damages from the defendants in any Court

except the Courts in India.147 Since, Indian Courts are Courts of both law and equity, they

possess the power to grant such an equitable relief.148

75. The Hon’ble Supreme Court of India has categorically stated that such a relief can be

granted in regard to the proceedings which are oppressive or vexations or are sought to be

undertaken in a forum non- conveniens.149

76. It is submitted that if the claimant files another civil suit in UK during the pendency of

the present case, such proceedings would be against the ends of justice (i); and/or in a

forum non- conveniens (ii).

146 Civil Justice in England and Wales, (Oct. 22, 2014, 1:45 PM), http://www.judiciary.gov.uk/about-the-judiciary/the-justice-system/jurisdictions/civil-jurisdiction/.147Airbus Industrie v. Laura Howell Linton, I.L.R. 1994 KARNATAKA 1370.148 Oil and Natural Gas Commission v. Western Co. of North America, A.I.R. 1987 S.C. 674; Modi Entertainment Network and Anr., A.I.R. 2003 S.C. 1177.149See Modi Entertainment Network and Anr., A.I.R. 2003 S.C. 1177.

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i. A civil suit in UK would be against the vexatious and oppressive.

77. In order to secure an injunction, the present defendants need to show as to how the

interests of justice will be served in the best way.150 If foreign proceedings may result in

extreme inconvenience,151 or multiplicity of actions,152 such cases can be classified as

vexatious or oppressive.153

78. Therefore, if the claimants initiate another civil action in the English Courts, such course

of action would be oppressive and vexatious as it would unnecessarily lead to multiplicity

of proceedings, especially in light of the factors that the alleged wrong has occurred in

Indian territory, the defendants carry on their profession in India and the lex causae would

be the substantive law of India.

79. Even the Courts in England would have to be take into account the UNIDROIT principles

of Transnational Civil Procedure that suggest that a Court should decline jurisdiction or

suspend the proceeding, when the dispute is previously pending in another court

competent to exercise jurisdiction.154

ii. A civil proceeding in UK would be in a forum non-conveniens.

80. Generally, the Courts grant stay on the ground of forum non conveniens, if it is satisfied

that there is some other available forum, having competent jurisdiction and appropriate for

trial of the action, encompassing the interests of all parties and the ends of justice.155

81. The criteria to determine a more appropriate forum, for the purpose of ordering stay of the

suit, as laid down by the Supreme Court of India, would be to look for that forum that had

the most real and substantial connection in terms of convenience or expense with the

150 1 DICEY ET AL., supra note 134, at pp. 504-5.151Logan v. Bank of Scotland (No. 2), [1906] 1 K.B. 141.152Australian Commercial Research and Development Ltd. v. A.N.Z. McCaughan Merchant Bank Ltd., [1989] 3 All E.R. 65.153 1 DICEY ET AL., supra note 134, at pp. 504-5.154 UNIDROIT PRINCIPLES OF TRANSNATIONAL CIVIL PROCEDURE, art. 2.6 (2004)[hereinafter ‘UNIDROIT’].155Spiliada Maritime Corp. v. Cansulex Ltd., [1987] A.C. (H.L.) 460 (appeal taken from Eng.).

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action in dispute; availability of witnesses; the law governing the relevant transaction and

the places where the parties resided or carried on business.156

82. It is submitted that the English Court is a forum non-conveniens as the defendants would

have to take all the witnesses, documentary evidence, receipts, hospital records to UK,

which would cause great inconvenience and economic loss, especially in light of the fact

that the cause of action in dispute is alleged and unless the court would grant an anti-suit

injunction against the respondent, it would result in disastrous consequences to the

defendants.

B. SUIT IS FILED AFTER THE CONCLUSION OF THE PRESENT PROCEEDINGS.

83. The petitioners have filed a civil suit in Indian Judicial system claiming damages on the

grounds of compositely negligence157 of the doctors. The Court therefore, would

conclusively decide the rights and liabilities of the parties by applying the law and give

whatever remedy, it may deem fit.

84. It is submitted that if a judgment is rendered by the Indian Court on merits of the present

case, then it would necessarily lead to invocation of the doctrines of res judicata and issue

estoppel (i); merger of cause of action with the Indian judgment (ii); and also making it

obligatory for the contracting states to recognize and enforce the judgment under various

International Private law principles and conventions (iii).

i. Application of the doctrines of Res Judicata and issue estoppel.

85. The principles of res judicata and the issue estoppel is applicable in cases where a

question of fact or a question of law has been conclusively decided between the two

parties in one suit or proceeding.158The English common law has made it clear that a

156 Id. (cited in See Modi Entertainment Network and Anr., A.I.R. 2003 S.C. 1177).157Clarifications to the Moot Court Problem, ¶ 1.158 Satyadhyan Ghosal v. Smt. Deorajin Debi, [1960] 3 S.C.R. 590 (cited in Arjun Singh v. Mohindra Kumar and Ors., A.I.R. 1964 S.C. 993); SPENCER BOWER & TURNER, RES JUDICATA 9 (Sir Alexander Turner ed., 2nd

ed.1969).

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foreign judgment can give rise to a plea of issue estoppel.159

86. The civil justice system in the United Kingdom is mainly dealt by the County

Courts.160Therefore, if the claimant in the present civil suit secures a judgment on the

merits of the case from the present Court, still proceeds to initiate another civil action

against the respondents, then, the issues on which the Indian Courts would have given a

conclusive decision, the claimant would be estopped from contesting those issues before

the English Court.

ii. Judgment of the present court will lead to merger of cause of action.

87. The statutory law161 in the United Kingdom would not allow the present claimant, if he

succeeds in the present suit, to bring another suit on the same cause of action against the

present defendants in the United Kingdom.

88. It is a settled law in England that if a plaintiff has brought proceedings in a foreign court

against a defendant for damages in respect of a cause of action and obtains a judgment,

and that judgment is satisfied, he cannot proceed in respect of the same debt or of damages

based on the same cause of action against the same defendant in the courts of England.162

89. A similar question arose in the case of Black v. Yates,163 where the plaintiff widow sought

to secure damages from an English Court after securing damages in the Spanish Court on

the same cause of action of death of her husband in Spain due to the negligence of the

defendant. The Court held that due to § 34 of the Civil Jurisdiction and Judgments Act

159 Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. (H.L.) 853 (appeal taken from Eng.) (cited in Black v. Yates, [1992] Q.B., 526 at 529).160 Civil Justice in England and Wales,supra note 146.161Civil Jurisdiction and Judgments Act, 1982, c. 27, § 34 (Eng.).162 Barber v. Lamb (1860) 8 C.B. (N.S.) 95; Taylor v. Hollard, [1902] 1 K.B. 676 (cited in Kohnke v. Karger, [1951] 2 K.B. 670).163[1992] Q.B. 526.

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1982 there is a merger of the cause of action with the judgment given by the foreign

Court.164

90. Therefore, once the Spanish Court had decided the cause of action and given a judgment

on that cause of action, the same cause of action cannot be invoked to seek damages in

England, as the Spanish judgment has subsumed the cause of action.165

91. Therefore, even on the basis of English statutory law, the claimant would not be able to

bring a civil action in UK County Court as such a civil suit would not be entertained.

iii. Obligation on the United Kingdom to recognize and enforce the Indian

judgment under International Principles.

92. The Principles formulated by International Institute for the Unification of Private Law

bind both the states of India and United Kingdom,166providing that a final judgment

awarded in another forum in a proceeding substantially compatible with its principles must

be recognized and enforced, unless substantive public policy requires otherwise.167

93. Therefore, it is submitted that the judgment of the Kolkata District Court on the merits of

the dispute would, subsequently govern the rights and liabilities of the parties concerned

and will be recognized in both UK and Indian jurisdictions.

PRAYER

164 Id. at 542.165 Id. at 543.166 Key Assumption (a) to the Moot Court Problem.167UNIDROIT,supra note 154,art. 30.

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In light of the facts of the case, issues raised and arguments advanced, Counsels for the

Defendants respectfully prays before this Hon’ble Court to:

1. HOLD that there has been no negligence on part of the defendants;

2. DISMISS the suit;

3. GRANT injunction against the claimant from initiating any legal proceeding in any

other forum;

4. PASS any other order, which this Hon’ble court may be pleased to grant in the

interests of justice, equity and good conscience.

All of which is respectfully affirmed and submitted

Sd/-

Counsels for Defendants

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Team C14-22 Defendants

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Transcript of Team C14-22 Defendants