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 CLAIMANT

Table of Contents

TABLE OF CONTENTS
TABLE OF CONTENTS........................................................................................................II
TABLE OF AUTHORITIES..................................................................................................V
STATEMENT OF JURISDICTION...................................................................................XII
STATEMENT OF FACTS.................................................................................................XIII
SUMMARY OF PLEADINGS...........................................................................................XVI
I.

THE KOLKATA DISTRICT COURT

HAS

JURISDICTION

TO

ADJUDICATE

THIS

DISPUTE............................................................................................................................. XVI
PLEADINGS............................................................................................................................1
I. THAT

THE

KOLKATA DISTRICT COURT

HAS

JURISDICTION

TO

ADJUDICATE

THIS

DISPUTE.................................................................................................................................1
A. The Code of Civil Procedure allows the Jurisdiction of Kolkata District Court..........1
B. International Conventions and Principles recognize the Jurisdiction of Kolkata
District Court.....................................................................................................................1
II. THAT

THE

DEFENDANTS

ARE

COMPOSITELY NEGLIGENT

IN

CARRYING OUT

THE

TREATMENT OF THE CLAIMANTS WIFE.............................................................................3

A. Two or More Persons Have Carried out the Treatment................................................3
B. The Treatment has Been Negligently Carried Out........................................................4
i. The defendants did not exercise ordinarily skill and care.......................................... 4
ii. The established and accepted norms of medical practice have not been followed.. .9
iii. The damages are a direct consequence of the act of the defendants......................12
III. THE LIABILITY OF THE DEFENDANTS CANT BE EXEMPTED THROUGH THE PATIENT
UNDERTAKING CUM GUIDELINE DOCUMENT....................................................................13

Table of Contents
A. There is a Fundamental Breach of a Standard Form Contract...................................13
B. The Liability in Tort cannot be Exempted by a Contractual Clause...........................14
C. The Patient Undertaking cum Guideline Document is against the Public Policy......15
D. The Provision of 16 of the Indian Contract Act is Attracted...................................16
IV. THE LIABILITY
WAS NOT

OF THE

DEFENDANTS

WOULD NOT

MITIGATE

AS

THE CLAIMANT

NEGLIGENT..........................................................................................................18

A. The Claimant had taken Reasonable Care for the Safety of the Deceased.................18
B. The Negligence, even if Present, was not Substantial.................................................18
C. The Claimant took the Safest Course of Action in Light of the Dangerous Situation
Caused By The Defendants..............................................................................................19
V. THAT THERE

CAN BE

NO BAR

ON THE

CLAIMANT

TO

INITIATE

LEGAL

PROCEEDINGS IN UK..........................................................................................................21
A. Difference in the Heads of Damages in various Jurisdictions will Lead to Different
Causes of Action..............................................................................................................21
i. Ascertaining the heads of damages is a substantive issue........................................22
ii. Non- recognition of any head of damage leads of a separate cause of action........22
iii. Non- recognition of damages under the head of bereavement in Indian law may
lead to a separate cause of action................................................................................23
iv. The Principle of claim preclusion is inapplicable...................................................23
B. Avoid any Chances of Delay in Grant of Relief from the Indian Courts.....................24
VI. THAT THE CLAIMANT IS ENTITLED TO SUE AND CLAIM DAMAGES UNDER VARIOUS
HEADS..................................................................................................................................25
A. Entitlement to Recover Pecuniary Damages...............................................................25
i. Loss of income of the deceased leading to loss of dependency.................................26
ii. Costs in terms of expenses incurred on various items............................................. 27

Table of Contents
B. Entitlement to Recover Non- Pecuniary Damages......................................................27
i. Pain and Suffering of the Deceased..........................................................................27
ii. Loss of Consortium.................................................................................................. 28
iii. Mental and Emotional Distress of the Claimant.................................................... 28
C. Entitlement to Recover Punitive Damages..................................................................29
PRAYER.................................................................................................................................30

Table of Authorities

TABLE OF AUTHORITIES

STATUTES
Civil Jurisdiction and Judgments Act, 1982.............................................................................23
CODE CIV. PROC. 1908, No. 5 of 1908......................................................................................1
Fatal Accidents Act 1855, No.12 of 1855..........................................................................25, 27
Fatal Accidents Act, 1976..................................................................................................23, 28
Indian Contracts Act 1872, No. 9 of 1872.........................................................................15, 16
Legal Representatives Suits Act 1855, Act, No.12 of 1855.........................................25, 26, 27
Private International Law (Miscellaneous Provisions) Act 1995.............................................21

INDIAN CASES
Akshoy Kumar Patil v. New India Assurance Co., A.I.R. 2007 Del. 136................................16
Ashwani Kumar Mishra v. P. P.MuniamBabu, 1999 A.C.J. 1105......................................25, 27
B.V. Nagaraju v. Oriental Insurance Co. Ltd, (1996) 4 S.C.C. 647...................................13, 14
Chainatamano v. Surendranath, I.L.R. (1956) Cut. 587.............................................................4
Chinnappa Reddy, J.; M.V. Elisabeth v. Harwan Investment & Trading Pvt. Ltd., Goa, [1992]
1 S.C.R. 1003.........................................................................................................................2
Company of India Ltd. v. BirendraBahadurPandey, 1984 (2) E.C.C. 142.................................2
DevkiNandan v. GokliBai, (1886) 7 Punj. L.R. 325................................................................16
Dr. Balram Prasad v. Dr. KunalSaha and Ors.,(2014) 1 S.C.C. 384........................................23
Dr. KusaldasPammandasv. State of Madhya Pradesh, A.I.R. 1960 M.P. 50..............................7
Dr. Laxman v. Dr. Trimbak, A.I.R. 1969 S.C. 128.....................................................................4
erma, J., M.V. Mariner IV v. V.S.N.L.,1998 (5) Bom. C.R. 312................................................2

Table of Authorities
GhanshymdasBhagwandasv. State of Madhya Pradesh; 1977 A.C.J. 182.................................7
Gherulal v. MahadeodasMaiya, A.I.R. 1959 S.C. 781.............................................................15
Gramophone Company of India Ltd. v. BirendraBahadurPandey, 1984 (2) E.C.C. 142...........2
Indian and General Investment Trust Ltd. v. Sri RamchandraMardarajaDeo, Raja of
Khalikote, A.I.R. 1952 Cal. 508...........................................................................................21
Inland Water Transport Corporation Limited and OrsvsBrojoNathGanguly and Ors,1986 AIR
1571......................................................................................................................................16
Jacob Mathew v. State of Punjab, (2005) 6 S.C.C. 1.....................................................4, 15, 16
M.K. Usmankoya v. C.S. Santha, AIR 2003 Ker 191..............................................................16
M.Siddalingappa v. T.Nataraj, A.I.R. 1970 Kant.154..............................................................15
M.V. Elisabeth v. Harwan Investment & Trading Pvt. Ltd., Goa, [1992] 1 S.C.R. 1003..........2
Mahboob Khan v. Hakim Abdul Rahim, A.I.R. 1964 Raj. 250...............................................16
Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and Ors., A.I.R. 2010 S.C. 1162.........7, 11
Martin F. D'Souza v. Mohd. Ishfaq, A.I.R. 2009 S.C. 2049.......................................................6
Minor Marghesh K. Parikh v. Dr. Mayur H. Mehta, A.I.R. 2011 S.C. 249................................7
Municipal Corporation of Greater Bombay v. LaxmanIyer, (2003) 8 S.C.C. 731...................18
National Insurance Co. Ltd. v. Indira Srivastava, (2008) 2 S.C.C. 763...................................26
PaschimBangaKhetMazdoorSamity v. State of West Bengal, (1996) 4 S.C.C. 37..................29
PoonamVerma v. Ashwin Patel, A.I.R.1996 S.C.2111...............................................................5
Pujamma v. G. Rajendra Naidu, A.I.R. 1988 Mad. 109.............................................................4
Pushpa v. Shakuntla, (2011) 2 S.C.C. 240...............................................................................28
R.S.Deebo v. M.V.Hindlekar, A.I.R. 1995 Bom. 68................................................................15
Rajesh and Ors. v. Rajvir Singh and Ors., 2013 (9) S.C.C.54................................................28
Ram Nivas v. State of Uttar Pradesh, 1968 Cri.L.J.635.............................................................7
Rani Gupta v. United India Insurance Company Ltd., (2009) 13 S.C.C. 498..........................28

Table of Authorities
Rattan Chand Hira Chand v. Askar Nawaz Jung, (1991) 3 S.C.C. 67.....................................15
Shiv Indersen Mirchandani of Bombay and Anr. v. Natasha Harish Advani and Ors., 2002 (2)
Bom. C.R. 436........................................................................................................................2
ShivrajVasantBhagwat v. Shevanta D Indulkar, 1997 A.C.J. 1014..........................................14
Smt. Satya v. ShriTeja Singh, A.I.R. 1975 S.C. 105................................................................21
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....................................................................5
Subbaya v. Verayya (1935) M.W.N. 1043..................................................................................3
Sukumar Mukherjee and BaidyanathHalder v. Malay Kumar Ganguly and Anr.,(2004) ILR 1
Cal 332.................................................................................................................................28
Sunil Sharma v. Bachitar Singh, (2011) 11 S.C.C. 425...........................................................28
T.O. Anthony v. Karvarnan, (2008) 3 S.C.C. 748......................................................................4
Thomson-CSF v. National Airport Authority of India, A.I.R. 1993 Del. 252..........................15
V. KishanRao v. Nikhil Super Speciality Hospital, 2010 (5) S.C.R. 1......................................5
Vidya Devi v. Madhya Pradesh State Road Transport Corporation, A.I.R. 1975 M.P. 89.......18
Vishakha v. State of Rajasthan, A.I.R. 1997 S.C. 3011..............................................................2

UK CASES
Alexander v. Railway Executive, [1951] 2 All E.R. 442.........................................................13
Australian Commercial Research and Development Ltd. v. A.N.Z.McCaughan Merchant
Bank Ltd., [1989] 3 All E.R. 65...........................................................................................24
BeaumontThomas v. Blue Star Line Ltd., [1939] 3 All E.R. 127............................................14
Bernett v. Chelsea and Kensington Hospital Management Committee, (1986) 1 All E.R. 1086
..............................................................................................................................................12
Black v. Yates...........................................................................................................................22

Table of Authorities
Bolam v. Friern Hospital Management Committee...........................................................4, 5, 9
Boy Andrews v. St. Roguvald, (1947) 2 All E.R.(H.L.) 350...................................................19
Chaplin v. Boys, [1971] A.C. 356 (H.L.)...........................................................................21, 22
Chester v. Afshar (2002) 3 All E.R. 552....................................................................................5
Edmunds v. Simmonds [2001] 1 W.L.R. 1003.........................................................................22
G. H. Renton, Ltd. v. Palmyra Trading Corporation of Panama, [1957] A.C.(H.L.) 149........14
Hamlyn & Co v.Talisker Distillery, (1894) 21 R (H.L.)21......................................................21
Harding v. Wealands, [2006] UKHL 32...................................................................................22
Hume v. Oldakre, 171 E.R. 494.................................................................................................3
Petrie v. Lamont, (1842) C. Marsh. 93.......................................................................................4
Robinson v. The Post Office, (1974) 2 All E.R. 737................................................................12
S Parks v. Edward Ash Ltd., (1943) 1 K.B. 223......................................................................18
Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital,
[1985] A.C. (H.L.) 871.........................................................................................................17
Slater v. Baker, 95 E.R. 860.......................................................................................................4
Swadling v. Cooper, (1931) A.C. (H.L.) 1...............................................................................18
Thake v. Maurice (1986) 1 All E.R. 497....................................................................................5
Thompson v. London County Council, (1899) 1 Q.B. 840........................................................3
White v. John Warwick & Co Ltd, [1953] 2 All ER 1021.......................................................14
Whitehouse v. Jordan, (1981) 1 All E.R. 267.............................................................................9

OTHER CASES
Bennett v.Coatbridge Health Centre, [2011] C.S.O.H. 9 (Scot.).............................................10
Bisso v. Inland Waterways Corporation, 349 U.S. 85 (1955)..................................................15
California Powder Works v. Atlantic &Pacific R.R. Co., 113 Ca. 329, 336, 45 Pac...............15

Table of Authorities
Chaplin v. Hawes, (1828) 3 C. & P. 554..................................................................................19
Fox v. Health Net, Riverside Sup Ct Case No. 219692 (1993)................................................10
Huber v. Steiner, (1835) 2 Bing. N.C. 202...............................................................................21
In Re Fulds Estate (No. 3),[1966] 2 W.L.R. 717....................................................................21
Jackson v Power 743 P.2d 1376 (Alaska 1987)........................................................................9
Karsales (Harrow) Ltd. v. Wallis, [1956] 1 W.L.R. 936...........................................................14
Kuhl v. Lincoln Nat'l Health Plan of Kansas City, Inc., 999 F. 2d 298 (8th Cir. 1993)...........10
Landgraf v. USI Film Prods, 511 U.S. 244 (1994)...................................................................29
Lanphier v. Phipos, (1838) 8 C. & P. 475..................................................................................4
Mostyn v. Fabrigas, 1 Cowp. 161............................................................................................22
Pappas v. Asbel, 675 A.2d 711, 713 (Pa. 1996).......................................................................10
SmeatonHanscombe v. Sassoon I.Setty, (1953) 1 W.L.R. 1468...............................................14
Smith v. The London and S.W. Railway Company, (1870-71) L.R. 6 C.P. 14........................12
Spurling Ltd. v. Bradshaw, [1956] 1 W.L.R. 461.....................................................................13
Waterhouse v. Australian Broadcasting Corp., (1989) 86 A.C.T.R. 1 (Australia)...................22
Welch v. Epstein 536 S.E. 2d 408 (2000)................................................................................29
Williams v. Health America 41 Ohio App. 3d 245 (1987).........................................................9
Wood v. Thurston, 1953 C.L.C. 6871........................................................................................5

ARTICLEAlan D.Widgerow, Toxic epidermal necrolysis management issues and treatment options,
1INT. J. BURNSAND TRAUMA42, 47 (2011)..........................................................................12
CrispianScully & Jose Bagan, Oral mucosal diseases: erythema multiforme, 46 (2) BR J
ORAL MAXILLOFACSURG 90, 94 (2008)................................................................................8

Table of Authorities
G. Gravante, D. Delogu et al, Toxic epidermal necrolysis and Steven Johnson syndrome: 11years

experience

and

outcome,

EUROPEAN

REVIEW

FOR

MEDICAL

AND

PHARMACOLOGICAL SCIENCES 121 (2007)............................................................................8

H.B. Sales, Standard Form Contracts, 16 (3) THE MODERN LAW REVIEW318, 328 (1953). .13
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)................................................................................................21

Jean Revuzet al.,Treatment of toxic epidermal necrolysis: Creteils experience, 123 (9)ARCH.
DERMATOLOGY1156, 1157 (1987).........................................................................................8
Mark R. Patterson, Standardization of Standard Form Contracts, 52 (2) WILLIAM AND MARY
LAW REVIEW 328 (2010).....................................................................................................13
N.H. Cox & I.H. Coulson, Diagnosis of skin diseases, in the 1 ROOKSS TEXTBOOK

OF

DERMATOLOGY 5.2 (Tony Burns et al. eds., 2010)................................................................6

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, 161 (2010)........................................................................................8

Nick J Levell, Stephen K Jones et al, Dermatology, Royal College of Physicians 2013,
p.81, available at www.rcplondon.ac.uk/dermatology.........................................................10
P.H. Halebian et al., Improved burn center survival of patients with toxic epidermal
necrolysis managed without corticosteroids, 204 (5) ANNALS

OF

SURGERY503, 512 (1986)

................................................................................................................................................7
PrashantTiwari et al.,Toxic epidermal necrolysis: an update, 3 (2) ASIAN PACIFIC JOURNAL
OF TROPICAL DISEASE

85, 86 (2013).....................................................................................6

Robert A. Seligson, Contractual Exemption for liability from negligence, 44 (1) CALIFORNIA
LAW REVIEW121, 128 (1956)..............................................................................................14

Table of Authorities
Sandipan Dhar, Systematic corticosteroids in toxic epidermal necrolysis, 62 (4) IND. J.
DERMATOLOGY AND LEPROLOGY 210, 270 (1996)................................................................8
T.A.Faunce&S.N.Bolsin,Fiduciary disclosure of medical mistakes: The duty to promptly
notify patients of adverse health care events,12JOURNAL OF LAW AND MEDICINE 478, 480
(2005)...................................................................................................................................16
Thomas Harr&Lars E French, Toxic Epidermal Necrolysis and Stevens-Johnson Syndrome, 5
ORPHANET JOURNAL OF RARE DISEASES 1, 2 (2010)........................................................5, 6
WW Cook, Substance and Procedure in the Conflict of Laws, 42 YALE L.J. 333, 334
(1933)...................................................................................................................................21

BOOKSANNE LEE, ADVERSE DRUG REACTIONS 140 (2005).............................................................5, 6

DICEYET AL., THE CONFLICT OF LAWS 177 (Lawrence Collins ed.,14th ed. 2000)...........21, 23
G.C CHESHIRE

ET AL.,

CHESHIRE

AND

NORTHS PRIVATE INSTITUTIONAL LAW 67-8 (James

Facwett ed., 13th ed. 1999)...................................................................................................21

LOWELL A. GOLDSMITH et al., FITZPATRCICKS DERMATOLOGY

IN

GENERAL MEDICINE 649

(8th ed. 2012).................................................................................................................7, 8, 11

Luigi Naldi, The field and its boundaries, in the EVIDENCE BASED DERMATOLOGY 3 (Hywel
Williams et al. eds., 2014)....................................................................................................10
RATANLAL AND DHIRAJLAL, THE LAW OF TORTS 244 (G.P. Singh eds., 26th ed. 2013)...12, 19,
26, 27
TAPAS KUMAR KOLEY, MEDICAL NEGLIGENCE

AND THE

LAW

IN

INDIA: DUTIES,

RESPONSIBILITIES, RIGHTS 98 (1stedn. 2010).......................................................................27

WINFIELD &JOLOWICZ, TORT 22-9 (Rogers.. ed., 18thedn., 2010)........................................29

Statement of Jurisdiction

STATEMENT OF JURISDICTION

The claimant has submitted this dispute to this Honble Court, invoking its jurisdiction under
9 read with 19 of the Code of Civil Procedure 1908, read with 1, Legal Representatives
Suits Act 1855 and 1A Fatal Accidents Act, 1855, 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 plaintiff humbly submits to the jurisdiction of this Honble Court and shall accept any
judgment of this Court as final and binding and shall execute them in its entirety and in good
faith.

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.

Statement of Facts
Treatment given to Mrs Sharon Stanley at Vasantech
When Sharon Stanleys 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 Sharons condition as Toxic Epidermal Necrolysis (hereinafter
TEN) but did not make any drastic change in treatment already being given. TEN is a rare

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.

Summary of Pleadings

SUMMARY OF PLEADINGS

I. THE KOLKATA DISTRICT COURT

HAS

JURISDICTION

TO

ADJUDICATE

THIS

DISPUTE.
District Court in Kolkata has the authority to adjudicate this civil dispute. To establish
this, the claimant has submitted a two-fold argument: (A) That the Code of Civil
Procedure 1908 provides for the jurisdiction of the Kolkata District Court, and (B) that
the International Conventions and Principles recognize the jurisdiction of the Kolkata
District Court.

II. THE DEFENDANTS ARE COMPOSITELY NEGLIGENT IN CARRYING OUT THE

TREATMENT OF THE CLAIMANTS WIFE.
The defendants are compositely negligent in carrying out the treatment of the claimants
wife. To establish this, the claimant has submitted a two-fold argument: (A) That two or
more persons have carried out the treatment, as the 1 st defendant was involved in carrying
out the initial treatment and the 2nd defendant continued the treatment before the
claimants wife was shifted from Kolkata to Gurgaon, and (B) that the treatment was
negligently carried out as the defendants did not exercise ordinary skill and care and
follow the established and accepted norms of medical practice. Moreover, the damages
were a direct consequence of the act of the defendants.

III.THE LIABILITY OF THE DEFENDANTS CANNOT BE EXEMPTED THROUGH THE

PATIENT UNDERTAKING CUM GUIDELINE DOCUMENT.

Summary of Pleadings
The Patient Undertaking cum Guideline Document cannot exempt the liability of the
defendants. To establish this, the claimant has submitted a four-fold argument: (A) That
there is a fundamental breach of a Standard Form Contract as it exempts the doctors from
the core obligation of safe and medically recognized treatment to the patients, (B) that the
liability in tort cannot be exempted by a contractual clause and the duty of care to the
patient arises out of tort law and not a contractual stipulation, (C) that the Patient
Undertaking cum Document is against the public policy as it entails the features of an
unconscionable contract, and (D) that the provisions of section 16 of the Indian Contract
Act is applicable as the exemption clause is clearly symbolic of an unfair advantage that
the doctors and staff of Vasantech Hospital had over the patients.

IV. THE LIABILITY OF THE DEFENDANTS WOULD NOT MITIGATE AS THE CLAIMANT
WAS NOT

NEGLIGENT.

There is absence of contributory negligence on part of the defendants. To establish this,

the claimant has submitted a three-fold argument: (A) That the claimant did not fail to
take reasonable care of the safety of the deceased as the movement of the plaintiff from
Kolkata to Gurgaon was as per reasonable medical prudence, (B) that in arguendo, even if
there was negligence, it was not substantial as the disease of the wife of the claimant has
already aggravated before the claimants wife was moved from Kolkata to Delhi, and (C)
that the plaintiff took the safest course of action in light of the dangerous situation created
by the defendants as the safest course of action was to move the claimants wife to
another medical facility so that her ailment could be cured.

V. THAT THERE IS NO BAR ON THE CLAIMANT TO INITIATE LEGAL PROCEEDINGS IN

UK.

Summary of Pleadings
The claimant is entitled to sue the defendants in the Birmingham County Court. To
establish this, the claimant submits a two-fold argument: (A) That recovering damages on
those heads which are not allowed by the Indian substantive law, but are allowed by the
UK law would lead to a different cause of action, and (B) The claimant can initiate legal
proceedings in the UK to avoid any chances of delay in granting of relief from the Indian
Courts.

VI. THAT THE CLAIMANT IS ENTITLED TO SUE AND CLAIM DAMAGES UNDER
VARIOUS HEADS.
The claimant is entitled to sue and claim damages under various heads. To establish this, the
claimant submits a three-fold argument: (A) That the claimant is entitled to recover pecuniary
damages, (B) that the complainant is entitled to recover non-pecuniary damages, and (C) the
claimant is entitled to recover punitive damages.

Pleadings

PLEADINGS
I. THAT
THIS

THE

KOLKATA DISTRICT COURT

HAS

JURISDICTION

TO

ADJUDICATE

DISPUTE.

1. It is submitted that the District Court in Kolkata has the authority to adjudicate this civil
dispute because [A] the Code of Civil Procedure 1908 provides for the jurisdiction of the
Kolkata District Court, and [B] the International Conventions and Principles recognize the
Jurisdiction of the Kolkata District Court.
A. THE CODE OF CIVIL PROCEDURE

ALLOWS THE JURISDICTION OF

KOLKATA DISTRICT

COURT.
2. The Code of Civil Procedure mandates that a suit for compensation for wrong done to a
person may be instituted in the Court in whose local limits the wrong has taken place. 1 It
also allows an option to a party to sue at the Court in whose territoriality the defendant
resides or works for personal gain.2
3. In the present case, the alleged wrong of negligently treating the claimants wife has been
committed in the territory of Kolkata and moreover, the defendants reside and work for
professional gain at this territory only.3

1 CODE CIV. PROC. 1908, No. 5 of 1908, 19. (INDIA CODE)

2 Id.
3 Moot Court Problem, 2, 6.

Pleadings
B. INTERNATIONAL CONVENTIONS

AND

PRINCIPLES

RECOGNIZE THE

JURISDICTION

OF

KOLKATA DISTRICT COURT.

4. It is a settled law that the national Courts will endorse rules of International law, provided
they do not conflict with national laws,4 so much so that even if India is not a signatory to
a convention, still the Courts can rely on these international conventions.5
5. Therefore, the Court can rely on the UNIDROIT Principles of Transnational Civil
Procedure that provide that the Court can exercise jurisdiction over a party when there is a
substantial connection between the forum state and the party or the transaction or
occurrence in dispute.6A substantial connection is said to exist when a significant part of
the transaction or occurrence has occurred in the forum state.7
6. Similar reliance can be placed on the Hague Convention on the Recognition and
Enforcement of Foreign Judgments,8 which also considers the jurisdiction of the Court in
whose jurisdiction the facts, which occasioned the damage occurred.
7. In the present case, Kolkata is the place with substantial connection to the occurrence in
dispute and is the place where the alleged damage has occurred. Therefore, it is submitted
that the present Court has jurisdiction to adjudicate on this matter.

4 Gramophone Company of India Ltd. v. Birendra Bahadur Pandey, 1984 (2) E.C.C. 142; M.V. Elisabeth
v. Harwan Investment & Trading Pvt. Ltd., Goa, [1992] 1 S.C.R. 1003;Vishakha v. State of Rajasthan, A.I.R.
1997 S.C. 3011.
5Shiv Indersen Mirchandani of Bombay and Anr. v. Natasha Harish Advani and Ors., 2002 (2) Bom. C.R. 436.
(citing See Gramophone Company of India Ltd., 1984 (2) E.C.C. 142; See M.V. Elisabeth, [1992] 1 S.C.R. 1003;
See Vishakha, A.I.R. 1997 S.C. 3011; M.V. Mariner IV v. V.S.N.L.,1998 (5) Bom. C.R. 312.)
6 UNIDROIT PRINCIPLES OF TRANSNATIONAL CIVIL PROCEDURE, art. 2.1.2 (2004) [hereinafter UNIDROIT].
7 Id.
8HAGUE CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS IN CIVIL AND
COMMERCIAL MATTER, art. 10 (4) (1971).

Pleadings

II. THAT
THE

THE

DEFENDANTS

ARE

COMPOSITELY NEGLIGENT

IN

CARRYING OUT

TREATMENT OF THE CLAIMANTS WIFE.

8. It is submitted that the defendants are compositely negligent for carrying out the treatment
of claimants wife as, [A] two or more persons have carried out the treatment; and [B] the
treatment has been negligently carried out.
A. TWO OR MORE PERSONS HAVE CARRIED OUT THE TREATMENT.
9. Composite negligence refers to the negligence on part of two or more persons. 9 Thus, the
person needs to be injured as a result of the negligence on part of two or more
wrongdoers.10 All persons who aid, or counsel, or direct or join in the committal of a
wrongful act, i.e. negligence would be party to the composite negligence.11
10. When persons, not acting in concert, by their wrongful acts, commit substantially
contemporaneously, cause damage to another person, they attract the liability of several
tort-feasors.12 Moreover, the tort-feasors cannot insist on having others joined as
defendants.13 The mere omission to sue some will not disentitle the plaintiff from claiming
full relief against those who are sued.14
11. It is submitted that in the present case, both the defendants were involved in carrying out
the treatment of the claimants wife. While the 1 st defendant was involved in carrying out
the initial treatment, the 2nd defendant continued the treatment before the claimants wife
was shifted from Kolkata to a Gurgaon Hospital.

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

10 Id.
11 Thompson v. London County Council, (1899) 1 Q.B. 840.
12 Hume v. Oldakre, 171 E.R. 494.
13 Subbaya v. Verayya (1935) M.W.N. 1043.
14 Id.

Pleadings
B. THE TREATMENT HAS BEEN NEGLIGENTLY CARRIED OUT.
12. An injury accruing15 to a party as a result of the wrongful act of two or more tort-feasors
forms the essential and intrinsic part of composite negligence. 16 Thus the causation of an
injury as a result of the negligence forms the essential component of composite
negligence.17
113. It is submitted that the injury caused to the claimants wife and claimant was due to the
negligence of the defendants in the treatment of claimants wife, which can be adjudged
from the facts of the case that: ordinary skills and care were not exercised (i); established
and accepted norms of the medical profession were not followed (ii);and the subsequent
damages caused are a direct consequence of the act of the defendants and were not
remote(iii).
i. The defendants did not exercise ordinarily skill and care.
14. The case of Bolam v. Friern Hospital Management Committee 18 had clearly established
the fact that the test for medical professionals is the test of an ordinary skilled man
exercising and professing to have that ordinary skill.
15. A doctor needs to ensure reasonable degree of care and caution while carrying out the
treatment of a patient.19 Moreover, the treatment of a doctor has to be judged in light of the
circumstances of the each case.20 It is incumbent upon the medical professional to bring a
fair, reasonable and competent degree of skill while carrying out a medical treatment.21

15 Chainatamano v. Surendranath, I.L.R. (1956) Cut. 587.

16 Petrie v. Lamont, (1842) C. Marsh. 93 (Eng.)
17 See T.O. Anthony, (2008) 3 S.C.C. 748; Pujamma v. G. Rajendra Naidu, A.I.R. 1988 Mad. 109.
18 (1957) 2 All E.R. 118.
19 Jacob Mathew v. State of Punjab, (2005) 6 S.C.C. 1.
20 Dr. Laxman v. Dr. Trimbak, A.I.R. 1969 S.C. 128.
21 Lanphier v. Phipos, (1838) 8 C. & P. 475; Slater v. Baker, 95 E.R. 860.

Pleadings
16. It is submitted that the defendants did not exercise ordinary care and skills as improper
diagnosis had been carried out by the 1st defendant (i-a); and the medication prescribed by
the defendants was not in consonance with established medical practice (i-b).
(i-a) The diagnosis performed by the 1 st defendant was grossly and blatantly
against the fundamentals of medical sciences.
17. It is submitted that a doctor, when consulted by the patient, owes the patient certain duties
and a duty of care in deciding what treatment to give is one of them. 22 It is the duty of a
medical professional to examine a patient closely and accurately diagnose the ailment of
the patient.23A doctor would be held liable for not applying with reasonable competence
the medical skills of which he/she is possessed.24
18. The diagnosis should appear reasonable in light of the circumstances of the case. 25
Moreover, the inherent risks associated with every treatment needs to be kept in mind at
the time of diagnosis.26
19. The claimants wife had complained of acute fever, rashes and pain when she approached
the 1st defendant for treatment.27
20. Initial symptoms of Toxic Epidermal Necrolysis (TEN) include pain and fever along with
stinging eyes.28 The patient might also experience chest pain, joint pain, nausea and
vomiting.29 The prodrome typically lasts from 1 day to 3 weeks. 30 The acute phase

22 Poonam Verma v. Ashwin Patel, A.I.R.1996 S.C.2111; State of Haryana v. Santra, A.I.R. 2000 S.C. 1888.
23 Wood v. Thurston, 1953 C.L.C. 6871 (cited in V. Kishan Rao v. Nikhil Super Specialty Hospital, 2010 (5)
S.C.R. 1).
24 See Bolam, (1957) 2 All E.R. 118.
25 Chester v. Afshar, (2002) 3 All E.R. 552.
26 Thake v. Maurice, (1986) 1 All E.R. 497.
27 Moot Court Problem, 1.
28 Thomas Harr & Lars E French, Toxic Epidermal Necrolysis and Stevens-Johnson Syndrome, 5 ORPHANET
JOURNAL OF RARE DISEASES 1, 2 (2010).
29ANNE LEE, ADVERSE DRUG REACTIONS 140 (2005).
30Toxic Epidermal Necrolysis, (Oct 10, 2014, 9:30 PM), www.emedicine.medscape.com/article/229698overview.

Pleadings
however consists of persistent fever and burning and painful skin rash. 31 When the rash
appears, it may be over large and varied parts of the body and it is usually warm and
appears red.32 An analysis of the skin biopsy would show typical full thickness epidermal
necrolysis due to keratinocyte apoptosis.33 This clearly differentiates it from any other
form of skin disease, especially allergic vasculitis. Apparent indications such as these that
point towards a particular ailment need to be taken note of and analysed in depth.34
21. As for any other organ, diagnosis of skin disease involves history, examination and
additional tests, if required. The diagnosis does not just involve taking a quick look at the
patient.35 The skin reactions needs to be analysed closely as they render instant diagnosis
in certain cases or atleast a diagnotic label which could be attributed to a certain disease
depending on the visual signs.36
22. It is submitted that the 1st defendant did not examine the claimants wife closely and
accurately and thus, breached the duty of care to diagnose the patient correctly. The
incorrect diagnosis of allergic vascultis had led to the huge deterioration in the health of
the patient and thus, the 1st defendant is liable for negligent diagnosis.
(i-b) The medication prescribed by the defendants was not in consonance
with the established medical practice.
23. It is submitted that the administration of any medication needs to be done in accordance
with the established medical principles.37If the medical professional is ignorant of the
science of medicine while prescribing the medication and its dosage, then a prima facie

31 Prashant Tiwari et al., Toxic epidermal necrolysis: an update, 3 (2) ASIAN PACIFIC JOURNAL OF TROPICAL
DISEASE 85, 86 (2013).
32 Id.
33 Thomas Harr & Lars E French, supra note 28.
34 Coakley v. Dr. Rosie, (2014) E.W.H.C. 1290.
35 N.H. Cox & I.H. Coulson, Diagnosis of skin diseases, in the 1 ROOKSS TEXTBOOK
(Tony Burns et al. eds., 2010).
36 ANNE LEE, ADVERSE DRUG REACTIONS 128 (2005).
37 Martin F. D'Souza v. Mohd. Ishfaq, A.I.R. 2009 S.C. 2049.

OF

DERMATOLOGY 5.2

Pleadings
case of negligence builds upon the doctor.38 Using or prescribing a wrong drug or
injection, which proves to be detrimental for the patient, would bring the doctor within the
ambit of medical liability.39
24. The claimants wife was administered 80 mg of Depomedrol straightway and prescribed
two injections daily for three days from 7 th Feb., while the maximum recommended
dosage of the drug is within the range of 40-120 mg, and that too at a minimum interval of
1-2 weeks between such doses.40
25. Depomedrol (methylprednisolone) is an anti-inflammatory steroid. 41 Corticosteroids are
double-edged weapons, insofar as they can have beneficial as well as huge untoward
effects such as immunosuppression.42 As per Jean Edouard Revoz and Jean Claude Rojuz,
whose expertise is accepted world over, corticosteroids are more dangerous than useful in
disorders such as TEN as they increase the risk of death from infections. 43 Moreover, the
dosage should only be from 80-120 mg per day and should be tapered quickly and
cautiously so as to avoid any untoward incident.44
26. Prednisolone is a corticosteroid that has anti-inflammatory and mineralocorticoid
properties.45 The steroidal qualities of prednisolone make it as unfit for the treatment of
TEN as Depomedrol.46 The people who receive corticosteroid are generally at a worse off

38 Dr. Kusaldas Pammandas v. State of Madhya Pradesh, A.I.R. 1960 M.P. 50; Minor Marghesh K. Parikh v.
Dr. Mayur H. Mehta, A.I.R. 2011 S.C. 249.
39 Spring Meadows Hospital & Another v. Harjol Ahluwalia & Anr.,(1998) 4 S.C.C. 39, Ram Nivas v. State of
Uttar Pradesh, 1968 Cri.L.J.635; Ghanshymdas Bhagwandas v. State of Madhya Pradesh; 1977 A.C.J. 182.
40 Moot Court Problem, 2, 3.
41 Depomedrol Datasheet, (Oct 5, 2014, 8 AM), www.medsafe.govt.nz/profs/datasheet/d/depomedolinj.pdf.
42 Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and Ors., A.I.R. 2010 S.C. 1162.
43 PROF. J.E. REVUZ & J.C. ROJEAU, CUTANEOUS MEDICINE AND SURGERY (cited in Malay Kumar Ganguly,
supra note 42).
44 2 LOWELL A. GOLDSMITH et al., FITZPATRCICKS DERMATOLOGY IN GENERAL MEDICINE 649 (8th ed. 2012).
45 Prednisolone Datasheet, (Oct 5, 2014, 8:45), www.medsafe.govt.nz/profs/datasheet/d/prednisonetab.pdf
46 P.H. Halebian et al., Improved burn center survival of patients with toxic epidermal necrolysis managed
without corticosteroids, 204 (5) ANNALS OF SURGERY503, 512 (1986).

Pleadings
position than those who do not use such steroids for the purpose for TEN. 47 The patients
using such steroids are prone to more complications and a longer hospital stay.48
27. Steroid used to be the standard treatment for TEN till the 1990s. However, the use of
these steroids has become increasingly disputable in light of the harmful effects that arise
out of them.49 Systematic steroids have become increasingly dangerous for treatment of
TEN owing to the increased chances of mortality.50 Hence the use of antibiotics,
anticonvulsants and non-steroidal inflammatory drugs has become preferable now.51
28. Even if steroids are to be given, they are to be only given at the early stages of the disease
along with proper dosage.52 High dosage at the early stages can benefit the patient if it is
withdrawn at the appropriate time.53 Continuing of the use of steroids, however, could be
quite detrimental for the patient.54
29. The risk of pneuomonia and septicemia also gets highly increased by corticosteroids. 55
They may even get masked and may reach an advanced stage before being recognized.56
30. Therefore, it is submitted that the administration of depomedrol in such high dosages by
the 1st defendant was a grossly negligent act when considered in light of the above facts.
Furthermore, the claimants wife was under the care of the 1 st defendant till it was
transferred to the 2nd defendant.57It is submitted that the conduct of the 1 st defendant, while
47 Jean Revuzet et al., Treatment of toxic epidermal necrolysis: Creteils experience, 123 (9) ARCH.
DERMATOLOGY 1156, 1157 (1987).
48 L. FRENCH & C. PRINS, ERYTHEMA MULTIFORME, STEVENS-JOHNSON SYNDROME AND TOXIC EPIDERMAL
NECROLYSIS, 290 (J.L. Bolognia et al. eds., 2nd ed. 2008).
49 Prashant Tiwari et al., supra note 31.
50 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, 161 (2010)
51 G. Gravante, D. Delogu et al, Toxic epidermal necrolysis and Steven Johnson syndrome: 11-years
experience and outcome, EUROPEAN REVIEW FOR MEDICAL AND PHARMACOLOGICAL SCIENCES 121 (2007).
52 Crispian Scully & Jose Bagan, Oral mucosal diseases: erythema multiforme, 46 (2) BR. J. ORAL
MAXILLOFAC SURG. 90, 94 (2008).
53 Sandipan Dhar, Systematic corticosteroids in toxic epidermal necrolysis, 62 (4) IND. J. DERMATOLOGY AND
LEPROLOGY 210, 270 (1996).
54 Depomedrol Datasheet, supra note 41.
55 2 LOWELL A. GOLDSMITH et al., supra note 44 at 651; Prednisolone Datasheet, supra note 45.
56 Id.
57 Moot Court Problem, 6.

Pleadings
in Vasantech, was regulated by the Patient Undertaking Cum Guideline Document, 58 in
lieu of which Prednisolone was administered under his directions.59 Furthermore, the 2nd
defendant even after diagnosing the disease as TEN still continued with the same
medication.60
31. It is submitted that the defendants breached their ordinary duty and care when
administering Depomedrol and Prednisolone. Such steroidal medication is highly advised
against in cases of TEN and thus their administration leads to imputation of negligence on
the defendants.
ii. The established and accepted norms of medical practice have not been
followed.
32. A medical professional needs to act in accordance with the standards of a reasonably
competent medical man at all points in time. 61 There are certain accepted standards and the
act of the medical professional should be in consonance with such standards62.
33. It is submitted that the defendants did not act as per the accepted norms of medical
practice as the claimants wife was not referred to a specialist at the outset of the treatment
(ii-a), and no supportive care was provided during the course of the treatment (ii-b).
(ii-a) Referral was not made to a specialist at the outset of the treatment.
34. It is submitted that absence of a timely referral to a specialist would constitute negligence
on part of the medical professional.63 The failure to send a patient to a specialist, when the
situation mandates, would be a breach of duty on part of the doctor and could lead to huge
aggravation in the condition of the patient. 64 Thus, the physician should not take the
58 Id., 5.
59 Id., 6.
60 Id., 7.
61 See Bolam, (1957) 1 W.L.R. 582.
62 Whitehouse v. Jordan, (1981) 1 All E.R. 267.
63 Williams v. Health America 41 Ohio App. 3d 245 (1987); Jackson v Power 743 P.2d 1376 (Alaska 1987).
64 Kuhl v. Lincoln Nat'l Health Plan of Kansas City, Inc., 999 F. 2d 298 (8th Cir. 1993).

Pleadings
patient on an experimental basis and an analysis with respect to the reference needs to be
made quickly.65
35. Specialists concentrate on specific types of illnesses and problems that affect specific
tissues and organ systems in our body.66 Dermatologists are the only experienced, trained
and accredited specialists in the diagnosis and management of diseases of the skin, hair
and nails in adults and children.67 There are no others who can provide care of an equal
quality to that of dermatologists,68 in terms of diagnosing and treating skin lesions.69
36. Unless the general practitioner has had special training in dermatology he should not
assume responsibility for the treatment of such conditions. 70 Moreover, a timely referral
needs to be made to the specialist.71 The decision to make a referral depends on the
analysis of how a reasonable general practitioner would have acted in determining whether
the person should have been referred or not.72
37. It is submitted that the claimants wife was not referred to a specialist at the onset of the
disease in spite of the apparent presence of severe symptoms of a skin disease. Moreover,
her care was handed over to the 1st defendant on the 12th Feb., when her condition had
deteriorated to a large extent. Therefore, the 1 st defendant was negligent due to delayed
and untimely referral.

65 Fox v. Health Net, Riverside Sup. Ct. Case No. 219692 (1993).
66 The Road to Becoming a Doctor, (Oct 6, 2014, 9:20 AM), http://www.aamc.org/download/68806/data/roaddoctor.pdf.
67Royal
College
of
Physicians:
Dermatology,
(Oct
23,
2014,
6
PM),
https://www.rcplondon.ac.uk/sites.default/files/dermatology.pdf.
68 Id.
69 Luigi Naldi, The field and its boundaries, in the EVIDENCE BASED DERMATOLOGY 3 (Hywel Williams et al.
eds., 2014).
70 R. Schaffer, Dermatology in General Practice, 74 S.A. MEDICAL JOURNAL 137, 139 (1958).
71 Id.
72 Bennett v. Coatbridge Health Centre, [2011] C.S.O.H. 9 (Scot.); Pappas v. Asbel, 675 A.2d 711, 713 (Pa.
1996).

Pleadings
(ii-b) There was no supportive care to the claimants wife during the course
of the treatment.
38. Supportive care becomes highly important in cases of TEN. Huge amount of attention
needs to be paid to high-calorie and high-protein diet.73 Symphonatic Treatment and
antibacterial policy are other aspects of supportive treatment that need to be adhered to. 74
Several litres of fluid per day are needed since fluid loss is enormous in severe cases. The
absence of substitution of these fluids leads to important internal problems.75
39. Artificial ventiliation also needs to be provided in certain cases.76 Conjunctivital
involvement also becomes a major problem. Thus eye care also constituted an important
element of the supportive care.77 Use of air- fluidized beds, use of systemic antibiotic
therapy for specific infections but not for prophylaxis, topical antibiotic therapy is not
used, meticulous wound care and moist saline gauge dressing are applied once daily when
most of the involved epidermal surface has sloughed off etc. are some of the other
measures that need to be taken.78 Thus, supportive case becomes an essential part of the
therapeutic approach for the prevention of TEN.79
40. It is submitted that there was absence of any kind of supportive therapy during the course
of treatment. While the 1st defendants wrong diagnosis initiated a totally different course
of treatment and supportive care could not be provided at that time, the 2 nd defendant even
after rightly diagnosing the claimants wife of TEN was patently negligent in not
providing the supportive care, which is the mainstay in treatment of TEN.

73 2 LOWELL A. GOLDSMITH et al., supra note 44, at 651; Malay Kumar Ganguly, supra note 42.
74 PROF. J.E. REVUZ & J.C. ROJEAU,supranote 43.
75 GERARD PIERARD, TREATISE ON TEN (cited in Malay Kumar Ganguly, supra note 42)
76 Malay Kumar Ganguly, supra note 42.
77 Id.
78 Id.
79 J.C. Roujeau and R.S. Stern, Severe Adverse Cutaneous Reactions to Drugs, 331 N. ENGL. J. MED.1272,
1280 (1994).

Pleadings
iii. The damages are a direct consequence of the act of the defendants.
41. It is submitted that for a tortious claim, the damage cause needs to be a direct result of the
act of the defendants.80 The negligence of the medical professionals needs to be the cause
of the damage that has accrued to the patient.81The but for test becomes important in this
regard, since it is to be analysed that whether the damage would have accrued but for the
negligence of the defendant.82
42. The defendants would in any casebe liable, if their wrongful act has resulted in materially
contributing to the damage.83 The fact that other factors were also present would not
discharge the defendants of their liability.84 The damages should, however, be such that a
reasonable man could have foreseen them.85
43. TEN is a serious adverse skin reaction that can be life threatening. 86 Complications such
as sepsis can lead to the mortality of the patient in TEN. Thus, in the present case the
damage accruing to the claimants wife was reasonably foreseeable. Moreover, the disease
could have been diagnosed, treated and cured at an earlier stage, which was but for the
negligence of the defendants, could not be done. Thus, the death of the claimants wife is a
direct consequence of the acts and omissions of the defendants.

80 RATANLAL AND DHIRAJLAL, THE LAW OF TORTS 184 (G.P. Singh eds., 26th ed. 2013).
81 Bernett v. Chelsea and Kensington Hospital Management Committee, (1986) 1 All E.R. 1086.
82 Robinson v. The Post Office, (1974) 2 All E.R. 737.
83 RATANLAL AND DHIRAJLAL, supra note80, at 185.
84 Id.
85 Smith v. The London and S.W. Railway Company, (1870-71) L.R. 6 C.P. 14.
86 Alan D. Widgerow, Toxic epidermal necrolysis management issues and treatment options, 1INT. J.
BURNSAND TRAUMA42, 47 (2011).

Pleadings

III. THE LIABILITY

OF THE

DEFENDANTS

CANT BE

EXEMPTED

THROUGH THE

PATIENT UNDERTAKING CUM GUIDELINE DOCUMENT.

44. It is submitted that the Patient Undertaking cum Guideline Document cannot exempt the
liability of the defendants as [A] there is a fundamental breach of a standard form contract,
[B] the liability in tort cannot be exempted by a contractual clause, [C] the document is
against public policy, and [D] it attracts the provisions of 16 of the Indian Contracts Act,
1872.
A. THERE IS A FUNDAMENTAL BREACH OF A STANDARD FORM CONTRACT.
45. It is submitted that the standard form contracts are those contracts where one of the
parties habitually makes contracts of the same type with other parties in a particular form
and allow little, if any, variation from that form. 87 These contracts entail standardization of
the package offered to customers, in much the same way, as is standardization of a
product.88 Due to the commercial nature of the most of these contracts, less attention might
be paid to issues of contractual fairness.89
46. There might be certain conditions in the standard form contracts which if put into effect,
would negate the main contractual duty.90 Such contracts, in consequence, become
unenforceable, as a protection needs to be provided against unreasonable consequences of
wide and sweeping exemption clauses.91 Moreover, every contract contains a core or
certain fundamental provisions,92which if any party fails to honor, will be held to be guilty

87 H.B. Sales, Standard Form Contracts, 16 (3) THE MODERN LAW REVIEW318, 328 (1953).
88 Mark R. Patterson, Standardization of Standard Form Contracts, 52 (2) WILLIAM AND MARY LAW REVIEW
328 (2010).
89 Id.
90 Alexander v. Railway Executive, [1951] 2 All E.R. 442.
91 Spurling Ltd. v. Bradshaw, [1956] 1 W.L.R. 461.
92 B.V. Nagaraju v. Oriental Insurance Co. Ltd, (1996) 4 S.C.C. 647.

Pleadings
of a breach of contract irrespective of the fact that an exempting clause has been inserted
purporting to protect that party.93
47. Fundamental breach protects the interest of the weaker party in the contract.94 An
exemption clause of the contract cannot allow a party to the contract to escape its liability
and be negligent in carrying out its duties with respect to the contract.95
48. It is submitted that the exemption clause of the Patient Undertaking cum Guideline
Document constituted a fundamental breach of contract insofar it exempts the staff and
doctors from all the risks associated with the treatment of a patient. The document entails a
contract with the fundamental and core obligation being provision of safe and medically
recognized treatment to the patients. The exemption clause of the document cannot be
used by the doctors and staff of the hospital to exempt themselves of this core provision
and thus a fundamental breach of contract has been constituted.
B. THE LIABILITY IN TORT CANNOT BE EXEMPTED BY A CONTRACTUAL CLAUSE.
49. It is submitted that tort duties are imposed by law to protect the interest of society in
freedom from various kinds of harm. 96 They are grounded basically upon social policy and
not upon the will or intention of the parties. Therefore the duty of ordinary care, therefore,
does not arise out of the contract.97
50. The exemption clause is an incident of a contract. Thus the exemption clause can exempt
the defendants from their liability in contract, however the exemption for the defendants
does not cover the ambit of torts.98

93 Id.; Smeaton Hanscombe v. Sassoon I.Setty, (1953) 1 W.L.R. 1468.

94 Shivraj Vasant Bhagwat v. Shevanta D. Indulkar, 1997 A.C.J. 1014.
95 Beaumont Thomas v. Blue Star Line Ltd., [1939] 3 All E.R. 127; Karsales (Harrow) Ltd. v. Wallis, [1956] 1
W.L.R. 936; G. H. Renton, Ltd. v. Palmyra Trading Corporation of Panama, [1957] A.C. (H.L.) 149 (appeal
taken from Eng.).
96 Robert A. Seligson, Contractual Exemption for liability from negligence, 44 (1) CALIFORNIA LAW REVIEW
121, 128 (1956).
97 PROSSER ET AL., TORTS 478 (Victor E. Schwartz et al. eds., 12 ed. 1955).
98 White v. John Warwick & Co Ltd, [1953] 2 All ER 1021.

Pleadings
51. A medical professional owes a reasonable duty of care to the patient while carrying out
the treatment of the patient.99 This duty of care is a duty arising out of tort law and is not a
contractual stipulation. Therefore the duty of care of the defendants cannot be exempted
through the Patient Undertaking cum Guideline Document, insofar it is a tortious claim.
C. THE PATIENT UNDERTAKING

CUM

GUIDELINE DOCUMENT

IS AGAINST THE

PUBLIC

POLICY.
52. It is submitted that whenever a party relying upon the exculpatory clause owes a duty of
service to the public, the contract is invalidated as being contrary to public policy. 100 Any
clause that is contrary to the public policy would be unenforceable as against the
contracting party.101 The protection against abridgment of public policy is to discourage
negligence by inflicting damages upon the wrongdoers. 102 Moreover, it also protects the
consumers of goods and services from harsh contracts being enforced upon them.103
53. Public policy is a broad term allowing the Courts to refuse the enforcement of a contract
on the considerations of public interest.104 The Court in pursuance of this might relieve a
party of the duty placed on it through an exemption clause of a contract. 105 Thus, an aspect
of the contract having tendency to injure public interest or public welfare would be
opposed to public policy and thus would be unenforceable.106
54. The Indian Contract Act 1872 explicitly prohibits the enforcement of such
agreements.107Any consideration or object that is opposed to public policy is prohibited by

99 See Jacob Mathew, (2005) 6 S.C.C. 1.

100 California Powder Works v. Atlantic &Pacific R.R. Co., 113 Ca. 329, 336, 45 Pac.
101 M.Siddalingappa v. T.Nataraj, A.I.R. 1970 Kant.154;R.S.Deebo v. M.V.Hindlekar, A.I.R. 1995 Bom. 68.
102 Bisso v. Inland Waterways Corporation, 349 U.S. 85 (1955).
103 Id.
104 Thomson-CSF v. National Airport Authority of India, A.I.R. 1993 Del. 252.
105 Gherulal v. Mahadeodas Maiya, A.I.R. 1959 S.C. 781.
106 Rattan Chand Hira Chand v. Askar Nawaz Jung, (1991) 3 S.C.C. 67.
107 Indian Contracts Act 1872, No. 9 of 1872, 21.

Pleadings
it.108 Thus, an unconscionable contract would be prevented from being enforced in the
interests of the public.109
55. It is submitted that in the present case, the Patient Undertaking cum Guideline Document
entails the features of an agreement opposed to public policy. A reasonable duty of care is
an essential feature that needs to be imbibed by the medical practitioners in their
functioning.110 Thus contracting out of such duty would be against public policy and would
render the agreement unconscionable.
D. THE PROVISION OF 16 OF THE INDIAN CONTRACT ACT IS ATTRACTED.
56. It is submitted that a contract is said to be induced by undue influence if the relationship
between the parties is such that one is able to dominate the will of the other party and uses
that position to obtain an unfair advantage.111 The party in the superior position might
prevail upon the other party and induce the other party to enter into an unfair agreement. 112
Undue influence constraints free agency, restricts the power of resistance and brings about
the submission of one party before the other.113
57. A party can be said to dominate the will of the other party when there is active trust and
confidence between the parties or the parties are not on an equal footing. 114Since, a doctor
is clearly on a higher footing that the patient in terms of medical knowledge along with the
expertise of the intricacies of the medical profession,115 and the relationship of a doctor and

108 Id.
109 Inland Water Transport Corporation Limited and Ors. v. Brojo Nath Ganguly and Ors., A.I.R. 1986 S.C.
1571 (cited in M.K. Usmankoya v. C.S. Santha, AIR 2003 Ker 191).
110See Jacob Mathew, (2005) 6 S.C.C. 1, See Bolam, (1957) 2 All E.R. 118.
111 Indian Contracts Act 1872, supra note 107, 16.
112 Akshoy Kumar Patil v. New India Assurance Co., A.I.R. 2007 Del. 136.
113 Mahboob Khan v. Hakim Abdul Rahim, A.I.R. 1964 Raj. 250.
114 Devki Nandan v. Gokli Bai, (1886) 7 Punj. L.R. 325.
115 T.A. Faunce & S.N. Bolsin, Fiduciary disclosure of medical mistakes: The duty to promptly notify patients
of adverse health care events, 12 JOURNAL OF LAW AND MEDICINE 478, 480 (2005).

Pleadings
a patient is clearly that of trust and confidence, wherein the patient puts his health and life
in the doctors hands,116 it is clear that doctors exercise influence over the patients.
58. It is submitted that the patient undertaking cum guideline document would attract the
provisions of 16 of the Indian Contract Act, insofar the exemption clause is concerned as
it is clearly symbolic of an unfair advantage on part of the doctors and staff of Vasantech
Hospital over the patients, thereby rendering the contract voidable at the option of the
party over whom the unfair advantage was exercised.

116 Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital, [1985] A.C.
(H.L.) 871 (appeal taken from Eng.).

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IV. THE LIABILITY

OF THE

DEFENDANTS

WOULD NOT

MITIGATE

AS

THE

CLAIMANT WAS NOT NEGLIGENT.

59. It is submitted that the liability of the defendants would not be reduced as there is absence
of contributory negligence on part of the defendants as [A] the claimant did not fail to take
reasonable care of the safety of the deceased;[B] in arguendo, even if the there was
negligence, it was not substantial; and [C] the claimant cannot be held liable for not taking
the safest course in light of the dangerous situation caused by the defendants.
A. THE CLAIMANT HAD TAKEN REASONABLE CARE FOR THE SAFETY OF THE DECEASED.
60. If the plaintiff fails to take reasonable care of his/her own safety, then the defence of
contributory negligence would be attracted.117 The claimants or the deceaseds negligence
should contribute in some degree to the injury or death of the deceased. 118The damages in
such cases would get apportioned as per the contribution of negligence by both the
parties.119
61. It is submitted that in the present case, the claimant had taken reasonable care for his
wifes safety. He had sought medical guidance at the outset of the disease and even took
her from Kolkata to Gurgaon in light of her deteriorating appalling condition at Vasantech.
The said movement was in pursuance of her own safety as per reasonable medical
prudence, thereby eliminating the chance of any absence of reasonable care on her part.
B. THE NEGLIGENCE, EVEN IF PRESENT, WAS NOT SUBSTANTIAL.
62. For the defence of contributory negligence to be attracted, it is necessary that the
negligence on part of the plaintiff was substantial. 120 The question, thus, in all cases is not
as to who had the last opportunity of avoiding the mischief, but whose act caused the
117 Municipal Corporation of Greater Bombay v. Laxman Iyer, (2003) 8 S.C.C. 731.
118S Parks v. Edward Ash Ltd., (1943) 1 K.B. 223 at 230.
119 Swadling v. Cooper, (1931) A.C. (H.L.) 1 (appeal taken from Eng.); Vidya Devi v. Madhya Pradesh State
Road Transport Corporation, A.I.R. 1975 M.P. 89.
120Id.

Pleadings
wrong.121 The act of the plaintiff needs to make a substantial contribution to the damage
suffered by the plaintiff.122
63. It is submitted that in the present case, the claimants wife had to be moved, out of
necessity, from Vasantech hospital in Kolkata to BIMS hospital Gurgaon to seek for better
medical treatment owing to her rapidly depleting health condition. The movement from
Kolkata to Gurgaon even if considered negligence, did not substantially contribute to the
injury and damage to the claimants wife, as the aggravation of TEN had already led to the
detaching of the upper layer of the skin from the lower layer of the body, all of which was
mainly the fault of the doctors at Kolkata who were negligent in undertaking improper
diagnosis and giving inadequate treatment.
C. THE CLAIMANT TOOK THE SAFEST COURSE OF ACTION IN LIGHT OF THE DANGEROUS
SITUATION CAUSED BY THE DEFENDANTS.
64. It is submitted that when the creation of a dangerous situation is ascribable to the
negligent act of the defendant, he is not to be excused from liability for the consequent
harm by reason of the fact that the endangered person takes a course of action which turns
out to not be the safest one.123
65. In such circumstances, the contributory negligence on the part of the person injured is not
made out unless he is shown to have acted with less caution than any person of ordinary
prudence would have shown under the same trying condition.124
66. In the present case, the dangerous situation was created by the defendants owing to the
negligent medical treatment that was carried out by them. The safest course of action in
that particular situation was to shift the claimants wife to another medical facility where
her treatment could be carried out in a more efficient manner. The course adopted was that
121 Boy Andrews v. St. Roguvald, (1947) 2 All E.R.(H.L.) 350 (appeal taken from Scot.).
122 Id.
123 RATANLAL AND DHIRAJLAL, supra note 80, at 595.
124 Chaplin v. Hawes, (1828) 3 C. & P. 554.

Pleadings
of a person of ordinary prudence and hence the defence of contributory negligence does
not get attracted in this particular situation.

Pleadings

V. THAT THERE

CAN BE

NO BAR

ON THE

CLAIMANT

TO

INITIATE

LEGAL

PROCEEDINGS IN UK.
67. It is submitted that the claimant is entitled to sue the defendants in the Birmingham
County Court because[A] recovering damages on those heads which are not allowed by
the Indian substantive law, but are allowed by the UK law would lead to a different cause
of action; and/or [B]to avoid any chances of delay in granting of relief from the Indian
Courts.
A. DIFFERENCE

IN THE

HEADS

OF

DAMAGES

IN VARIOUS

JURISDICTIONS

WILL

LEAD

TO

DIFFERENT CAUSES OF ACTION.

68. Before any proceeding begins in a conflict of laws case, it is the task of the forum to
characterize an issue either as substantive or procedural. 125 While substance is broadly a
matter

of

right,126

procedure

is

broadly

matter

of

remedy127

in

such

cases.128Characterization of an issue on the basis of Indian conflict of rules 129 is crucial for
the forum deciding the case so as to ascertain the governing law.130
69.In this regard, it is submitted that if there is any difference between the UK and Indian
substantive law on the aspect of recoverable heads of damages, then, such difference leads
to different causes of action. Ascertaining the heads of damages is a substantive issue (i);
consequently, if the Indian substantive law does not recognize any particular head of

125 In Re Fulds 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). See for instance, 9(1), Private International Law (Miscellaneous Provisions) Act
1995.
126 WW Cook, Substance and Procedure in the Conflict of Laws, 42 YALE L.J. 333, 334 (1933).
127 Id.
128 Janeen M. Carruthers, supra note 125.
129 Indian and General Investment Trust Ltd. v. Sri Ramchandra Mardaraja Deo, Raja of Khalikote, A.I.R.
1952 Cal. 508; Smt. Satya v. Shri Teja Singh, A.I.R. 1975 S.C. 105.
130Huber 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 NORTHS PRIVATE INSTITUTIONAL LAW 67-8 (James Facwett ed., 13th ed. 1999).

Pleadings
damage which is recognized in UK law, there would be a separate cause of
action(ii).Hence, the principle of claim preclusion would be inapplicable(iii).
i. Ascertaining the heads of damages is a substantive issue.
70. The common law classifies recoverable heads of damages as an issue of substantive
law.131
71. The reason for such characterization can be illustrated by taking into perspective the law
of a country that does not grant damages on account of pain and suffering, thereby
rendering a non citizen, who meets with an accident and undergoes pain and suffering,
without suffering any economical loss, totally remediless. Thus applying procedural law
and characterizing the heads of damages as a procedural issue in such cases poses a
situation wherein in essence, no right of the claimant can be enforced and hence
substantive rights are adversely affected.132
ii. Non- recognition of any head of damage leads of a separate cause of action.
72. In the illustration above, though there would be a civil wrong done according to the law
of which the claimant is a citizen; but by the lex loci delicti, the place where the tort
occurred (where the claimant might have gone to holidaying purposes), there would be no
justification, and consequently no civil cause of action.133
73. Therefore, the common law recognizes that difference or differences in the recoverable
heads of damage will distinguish one cause of action from another.134
74. A similar question arose in the case of Black v. Yates,135 where the plaintiff widow sought
to secure damages under the head of loss of dependency from an English Court on the
131 Chaplin v. Boys, [1971] A.C. 356 (H.L.) (appeal taken from Eng.), (Hodson, Lord, concurring) at 379,
(Guest, Lord, concurring) at 381-2, (Wilberforce, Lord, concurring) at 393, (Pearson, Lord, concurring) at 395
(cited in Waterhouse v. Australian Broadcasting Corp., (1989) 86 A.C.T.R. 1 (Australia); Edmunds v. Simmonds
[2001] 1 W.L.R. 1003; Harding v. Wealands, [2006] UKHL 32 (appeal taken from Eng.).
132Id.,at 394.
133 Mostyn v. Fabrigas, 1 Cowp. 161.
134 See Chaplin, [1971] A.C. 356 (H.L.) at 392, 394G-395B; Kohnke v. Karger [1951] 2 K.B. 670.
135[1992] Q.B.526.

Pleadings
basis of a judgment from the Spanish Court holding the defendant guilty of negligently
causing the death of the claimants husband in Spain. The Court rejected the claim on the
sole ground that the Spanish law recognizes the right to recover under the head of damage
for loss of dependence which was also recoverable in English proceedings under the
Fatal Accidents Act 1976.
iii. Non- recognition of damages under the head of bereavement in Indian law
may lead to a separate cause of action.
75. The English statutory law recognises damages in cases of death due to a tort under
various heads including that of bereavement136. 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.137
76. Therefore, if the Indian law does not recognize this head of damage by applying its own
substantive law,138 then, in such cases a right, not only remedy, of the claimant would be
curtailed.
77. Hence, it is submitted that another cause of action would arise in terms of whether the
claimant is entitled to seek damages under the head of bereavement in the English
statutory law which would have to be addressed by the English Civil Courts. Therefore,
there is no bar to file a civil action in England.139
iv. The Principle of claim preclusion is inapplicable.
78. The UNIDROIT Principles of Transnational Civil Procedure regarding the rules of
successive jurisdiction, i.e., res judicata is intended to avoid repetitive litigation.140

136 Fatal Accidents Act, 1976, c. 30, 1A (Eng.).

137 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.).
138 Dr. Balram Prasad v. Dr. Kunal Saha and Ors.,(2014) 1 S.C.C. 384.
139 Civil Jurisdiction and Judgments Act, 1982, c. 27, 34 (Eng.); 1 DICEY ET AL., supra note, at p. 584.
140 UNIDROIT, supra note 6, art. 28.

Pleadings
79. Claim preclusion means that a claimant may not, in a subsequent action, assert a claim
that was the subject of a prior action, whether the claim was victorious or defeated, if it
was conclusively determined.141
80. In the present case, the claimant is seeking damages under the head of bereavement or
mental and emotional distress in losing his wife. But if is the Indian Courts do not grant
damage under this head on the ground that its substantive law, i.e., the common law, does
not recognize such type of damages, then, there is no claim preclusion as it would be an
instance of the claim being left undecided due to absence of a provision in law.
B. AVOID ANY CHANCES OF DELAY IN GRANT OF RELIEF FROM THE INDIAN COURTS.
81. The English common law allows parallel proceedings in two jurisdictions only in unusual
circumstances.142 It has been opined in order to address the issue of Lis alibi pendens that
the second proceeding could be stayed with the option of reopening it again in case the
first proceeding does not provide timely and satisfying relief.143
82. Therefore, the UNIDROIT Principles to which both India and UK are signatories, 144
provide that the court should decline jurisdiction or suspend the proceeding, when the
dispute is previously pending in another court competent to exercise jurisdiction, unless it
appears that the dispute can be expeditiously resolved in that forum.145

141 UNIDROIT PRINCIPLES

OF TRANSNATIONAL CIVIL PROCEDURE (2004), Travaux Prparatoires, Study

LXXVI 1999 Doc. 3 at 22.
142Australian Commercial Research and Development Ltd. v. A.N.Z. McCaughan Merchant Bank Ltd., [1989]
3 All E.R. 65.
143UNIDROIT PRINCIPLES OF TRANSNATIONAL CIVIL PROCEDURE (2004), Travaux Prparatoires, STUDY
LXXVI 1999 DOC. 1at 14; DOC. 3 at 23.
144Key Assumption (a) to the Moot Court Problem.
145 UNIDROIT, supra note 6, art. 2.6.

Pleadings

VI. THAT

THE

CLAIMANT

IS

ENTITLED

TO

SUE

AND

CLAIM DAMAGES

UNDER

VARIOUS HEADS.
83. The claimant is the husband of the victim- deceased and has sued the defendants for
treating his wife negligently, thereby causing her death.
84. The common law maxim action personalis moritur cum persona, i.e. a personal right of
action dies with the person, has been abrogated by the statutory provisions of Legal
Representatives Suits Act 1855,146 and Fatal Accidents Act 1855147. These statutory laws
enable the Executors, Administrators or Representatives to sue for any wrong committed
in the time of the deceased person and also provide for compensation to the families for
the loss occasioned by the death of a person caused by actionable wrong.148
85. It is submitted that the claimant under the above laws and the common law is entitled to
various [A] pecuniary; [B] non- pecuniary; and[C] punitive damages, due to the
commission of the tort of negligence by the defendant doctors.
A. ENTITLEMENT TO RECOVER PECUNIARY DAMAGES.
86. Pecuniary damages are those damages, which the victim has actually incurred and are
capable of being assessed in terms of money.149
87. The claimant is entitled to pecuniary damages under the heads of loss of income of the
deceased (i); and costs in terms of the expenses incurred in the medical treatment in
Kolkata and Gurgaon, travelling and hotel expenses of taking to Gurgaon and expense of
litigation including lawyer services (ii);

146Legal Representatives Suits Act 1855, Act, No.12 of 1855, Statement of Objects and Reasons [hereinafter
Legal Representatives Act].
147Fatal Accidents Act 1855, No.12 of 1855, Statement of Objects and Reasons [hereinafter Fatal Accidents
Act].
148 Legal Representatives Act, supra note 146, 1; Fatal Accidents Act,supranote 147, 1A.
149 R.D. Hattangadi v. Pest Control (India) Pvt. Ltd., A.I.R. 1995 S.C. 755 (cited in Ashwani Kumar Mishra v.
P. P. Muniam Babu, 1999 A.C.J. 1105.).

Pleadings
i. Loss of income of the deceased leading to loss of dependency.
88. Both Legal Representatives Suits At 1855 read with the Fatal Accidents Act 1855 allow
the administrators, executors or representatives of the deceased to sue the wrongdoer for
the pecuniary loss caused to the dependents.150For the purposes of assessing damages to
the dependents, it has been held that the income of the deceased should be taken into
account.151
89. The Supreme Court of India has in a similar case used a method quite similar to the
formulae prescribed by the Medical Malpractices Act 2013, 152 to calculate the loss of the
income of the deceased for granting damages to the dependents. In that case, it took the
income of the deceased at the time of her death, and based on that income, calculated the
sum that she could have earned had she been in a regular job, termed as a. Then, it
reduced 30 % on account of future loss of income from the income of the deceased,
termed as b. Then, a deduction of 1/3rdfor the purposes of expenditure was done from the
income at the time of death, termed here as c. To the sum c, it multiplied the number of
lost years of life of the deceased when she could have earned and also multiplied the
conversion rate from dollar to rupee (in that case the couple was from US), termed here as
c+. Therefore, the loss of income was ascertained by adding to a, the difference
between b and c+.153
90. It is submitted that the said method will aptly take into account the difference in the
standards of living of the people in UK and having to bear the loss of deceased as far as
financial aspect is concerned.

150 Legal Representatives Act, supra note 146, 1 r/w Fatal Accidents Act, supra note 147, 1A; RATANLAL
AND

DHIRAJLAL, supra note80, at 113.

151 National Insurance Co. Ltd. v. Indira Srivastava, (2008) 2 S.C.C. 763.
152Key Assumption (b) to the Moot Court Problem.
153See Dr. Balram Prasad, (2014) 1 S.C.C. 384.

Pleadings
ii. Costs in terms of expenses incurred on various items.
91. In the cases of medical negligence, the Supreme Court of India has awarded damages on
the ground of expenses incurred by the claimant on the heads of cost of medical treatment
including the cost of medicines, consultants fees, nursing charges and other ancillary
charges like transportation to and from hospital,154 and the costs incurred in the litigation
including the lawyer fees.155
B. ENTITLEMENT TO RECOVER NON- PECUNIARY DAMAGES.
92. Non- pecuniary damages are those damages, which are capable of being assessed by
arithmetical calculations.156The claimant is entitled to non-pecuniary damages under the
heads of pain and suffering of the deceased (i);loss of consortium(ii);and mental and
emotional distress of the claimant (iii).
i. Pain and Suffering of the Deceased.
93. The abolition of the maxim action personalis moritur cum persona, by the Legal
Representatives Suit Act 1855157 and Fatal Accidents Act 1855158 allows for damages
suffered by the deceased before his death under the heads of loss of earnings, pain and
suffering.159 Duration and intensity of pain and suffering are taken into consideration while
awarding damages under this head.160
94. In the present case, the horrific impact of TEN resulting in the detachment of skin, 161
further aggravated with the increased vulnerability of sepsis due to depleting immunity as

154 TAPAS KUMAR KOLEY, MEDICAL NEGLIGENCE

AND THE LAW IN INDIA: DUTIES, RESPONSIBILITIES,

RIGHTS98 (1stedn. 2010).
155See Dr. Balram Prasad, (2014) 1 S.C.C. 384.
156 R.D. Hattangadi v. Pest Control (India) Pvt. Ltd., A.I.R. 1995 S.C. 755 (cited in Ashwani Kumar Mishra v.
P. P. Muniam Babu, 1999 A.C.J. 1105 S.C..
157 Legal Representatives Suits Act 1855;RATANLAL AND DHIRAJLAL, supra note 80, at 132.
158Fatal Accidents Act 1855, No.12 of 1855.
159 KOLEY, supra note 154, at 94-5.
160See Dr. Balram Prasad, (2014) 1 S.C.C. 384.
161 Moot Court Problem, 7.

Pleadings
a consequence of administration of alarming dosage of anti-allergy steroids,162 has caused
tremendous pain and shock to the deceased.
ii. Loss of Consortium.
95. In legal parlance, consortium is the right of the spouse to the company, care, help,
comfort, guidance, society, solace, affection and sexual relations with his or her mate.163
96. The Honble Supreme Court of India has recognized that the loss of companionship, care
and protection, etc., is a loss for which the spouse is entitled to get compensated
appropriately.164Therefore, by granting damages under the head of loss of consortium, the
Courts have made an attempt to compensate the loss of spouses affection, comfort, solace,
companionship, society, assistance, protection, care and sexual relations during the
future.165
iii. Mental and Emotional Distress of the Claimant.
97. In England, bereavement damages166 are perceived as performing a symbolic function of
providing some sympathetic recognition by the state of the fact of grief, sorrow, pain
caused to the claimant on losing some loved one,167and an expression on the part of society
of the gravity with which it regards the loss of a human life.168
98. In the present case, the claimant being the husband of the deceased had to experience the
traumatic experience of having to see his wifes suffering on account of her disease and

162WILLIAM MARTINDALE, MARTINDALE: THE EXTRA PHARMACOPOEIA 1021 (James E.F. Reynolds et al. eds.,
31st ed. 1996) (cited in Sukumar Mukherjee and Baidyanath Halder v. Malay Kumar Ganguly and Anr.,(2004)
I.L.R. 1 Cal. 332).
163 Rajesh and Ors. v. Rajvir Singh and Ors., 2013 (9) S.C.C.54; (cited in See Dr. Balram Prasad, (2014) 1
S.C.C. 384).
164See Dr. Balram Prasad, (2014) 1 S.C.C. 384; See Rajesh and Ors., 2013 (9) S.C.C.54; Sunil Sharma v.
Bachitar Singh, (2011) 11 S.C.C. 425; Pushpa v. Shakuntla, (2011) 2 S.C.C. 240; Rani Gupta v. United India
Insurance Company Ltd., (2009) 13 S.C.C. 498.
165See Rajesh and Ors., 2013 (9) S.C.C.54 (citedin See Dr. Balram Prasad, (2014) 1 S.C.C. 384).
166 Fatal Accidents Act, 1976, c. 30, 1A (Eng.)
167 428 PARL. DEB, H.C. (1982) 1294 (U.K.).
168 428 PARL. DEB, H.C. (1982) 41-2 (U.K.); 148 PARL. DEB, H.C. (1989) 544 (U.K.).

Pleadings
her bodily reactions to the steroids recklessly administered by the defendants, leading to
the wearing off of the skin on her body and culminating in her untimely death.169
C. ENTITLEMENT TO RECOVER PUNITIVE DAMAGES.
99. Punitive damages are awarded to punish the defendant and to deter him and others from
similar behavior in future.170
100. It has been recognized the Supreme Court that punitive damages are routinely awarded
in medical negligence cases in many jurisdictions for reckless and reprehensible act by the
doctors or hospitals in order to send a deterrent message to other members of the medical
community.171It is also recognized that the patients, irrespective of their social, cultural and
economic background have a Human Right to be treated with dignity.172
101. In the present case, administration of a dose of 80 mg of Depomedrol along with
prescribing injection Depomedrol to be used twice daily for three days by the 1 stdefendant
was in clear violation of the manufacturers warning and recommendation, which no
doctor has to right to do.173
102. Therefore, it is submitted that the claimant is entitled to pecuniary, non- pecuniary and
punitive damages in light of the loss of income of the claimants wife, mental suffering
and pain of both claimant and his wife, costs incurred in contesting litigation in form of
travelling expenses, lawyer services and the patent negligent act and omission of the
defendants.

169 Moot Court Problem, 7.

170 WINFIELD & JOLOWICZ, TORT1230 (Rogers ed., 18thedn., 2010).
171 Landgraf v. USI Film Prods, 511 U.S. 244 (1994); Welch v. Epstein 536 S.E. 2d. 408 (2000) (cited in See
Dr. Balram Prasad, (2014) 1 S.C.C. 384).
172 Paschim Banga Khet Mazdoor Samity v. State of West Bengal, (1996) 4 S.C.C. 37 (cited in See Dr. Balram
Prasad, (2014) 1 S.C.C. 384).
173 Moot Court Problem, 3;See Sukumar Mukherjee and Baidyanath Halder,(2004) I.L.R. 1 Cal. 332.

Prayer

PRAYER

In light of the facts of the case, issues raised and arguments advanced, Counsels for the
Claimant respectfully prays before this Honble Court to:

1. HOLD that the defendants were compositely negligent in causing the death of the
claimants wife;
2. AWARD damages;
3. REJECT any injunction application sought against the claimant from initiating any
legal proceeding in any other forum;
4. PASS any other order, which this Honble 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 Claimant