4TH INTRA UNIVERSITY MOOT COURT COMPETITION, 2020

ON BEHALF OF PETITIONER

PARTICIPANT CODE: TC- XXXIV

4TH INTRA UNIVERSITY MOOT COURT COMPETITION, 2020

BEFORE THE HON’BLE SUPREME COURT

UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA

SPECIAL LEAVE PETITION (CIVIL) (254/2019)

IN THE MATTER OF

VIKRANT MATHUR.................................................................................. PETITIONER

V.

QUICK HEAL HOSPITAL & ORS................................................................ RESPONDENTS

WRITTEN SUBMISSION ON BEHALF OF PETITIONER

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TABLE OF CONTENTS

TABLE OF ABBREVIATIONS...........................................................................................................2
TABLE OF AUTHORITIES................................................................................................................3
STATEMENT OF JURISDICTION.......................................................................................................4
STATEMENT OF FACTS...................................................................................................................5
ISSUES RAISED................................................................................................................................7
SUMMARY OF ARGUMENTS...........................................................................................................8
ARGUMENTS ADVANCED................................................................................................................8
PRAYER..........................................................................................................................................19
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Table Of Abbreviations
& And

AIHC All India High Court Cases

A.P Andhra Pradesh

Vol. Volume
AIR All India Reporter

Art. Article

FIR First Information Report

RAYE Research Association for Youth

Empowerment

Cri. Criminal
Cri. L.J./ Cr L.J. Criminal Law Journal
Hon’ble Honorable

ISP Internet Service Provider

YP(HP) Act Young Persons Harmful

Publications Act

NGO Non-Governmental Organization

No. Number

IT Act Information Technology Act

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reports

Supp Supplementary

UOI Union of India

v. Versus

NCDSRC National Consumer Dispute

Redressal Commission
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Table Of Authorities
A. CASES
1. Haryana State Industrial Corp. v. Cork Mfg. Co., (2007) 8 SCC 359
2. Sir Chunilal Mehta and Sons, Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR
1962 SC 1314
3. Pawan Kumar v. State of Haryana, (2003)11 SCC 241
4. C.C.E v. Standard Motor Products, AIR 1989 SC 1298
5. Janshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214
6. Sitaram Motilal Kalal v. Santanu Prasad Jaishankar Bhatt, AIR 1966 SCC 1697.
7. Indian Medical Association v. V.P.Shantha, 1995 (6) SCC 651.
8. Heaven v. Pender, (1883) 11 Q.B.D 503.
9. Bolam v. Friern Barnet Management Committee, (1957) 1 W.L.R 582.
10. Jacob Mathew v. State of Punjab, (2005) 6 SCC 1.
11. Hucks v. Cole , (1993) Med LR 393.
12. Yewens v Noakes, (1881) 6 Q.B.D 530.
13. Beard v. London General Omnibus Co, [1900] 2 QB 530
B. STATUTES
1. The Young Person’s (Harmful Publications) Act, 1956.
2. The Consumer Protection Act.
3. The Indian Contracts Act
C. BOOKS

1. Ratanlal and Dhirajlal, The Law of Torts (26th ed.2019)

2. Pollock & Mulla

3. M.P. Jain

4. Winfield and Jolowicz on Tort. London: Sweet & Maxwell, 2010

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Statement of Jurisdiction
The appellant in the present case has approached the hon’ble Supreme Court of India to initiate the
present appeal under article 136 of the constitution of India. The appellant most humbly and respectfully
submits to the jurisdiction of the hon’ble Supreme Court in the present matter.

Article 136 in The Constitution Of India 1949:

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India

(2) Nothing in clause (1 ) shall apply to any judgment, determination, sentence or order

passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces
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Statement Of Facts
1. Neha and Vikrant are wife and husband. Neha has been suffering from various health
issues. In recent times her problems have become complex as she is diagnosed with
esophageal cancer and hypertension. She had already been on diabetic alerts before
being diagnosed with cancer and hypertension. She had been under observation for
her ailments under the supervision of Dr. Shalabh Saxena. Vikrant is also a
rheumatologist.
2. On April 20, 2019, Neha took her medicines as prescribed after dinner. When she
went to sleep, suddenly, at around midnight, she complained to Vikrant of severe
anxiety and suffocation.
3. As it was mid night Vikrant called Mr. Shalabh Saxena, who could not pick up the
call. Vikrant sent the whatsapp message to Shalabh regarding the problems Neha is
complaining and she is urgent need of him. The doctor was familiar with her ailment
history. Shalabh after reading the messages replied that he is abroad for fifteen
daysand prescribed to give her a paracetamol for the time being. He advised to take
her to the hospital for immediate examination. After taking the prescribed medicine of
Doctor Shalabh, Neha felt relaxed. She said to Vikrant to wait till morning to visit the
Hospital.
4. Next morning, she was admitted ina renowned nearby hospital named Quick Heal
Super Specialty Hospital. It was a private hospital (Respondent No. 1).In the hospital
she was treated by a doctor Sivakant Jhunjhunwala (Respondent No. 2). She was
diagnosed with chills and fever.
5. Nasal feed tube was inserted on the same day by Dr. Anurag (Respondent No. 3) with
some allied tests prescribed to be carried out.
6. One of the tests was a Complete Blood Count Report, which found that the WBC
count was high, indicative of infection. She had also running temperature of 102
degrees Fahrenheit, and her medical treatment commenced with intravenous
administration of injection Magnex of 1.5 mg. As per the medical reports, the cannula
used for intravenous treatment stopped functioning and (Respondent No.3) Doctor
prescribed a further antibiotic tablet, Polypod (Cefpodoxime) to be
orally administered through the nasal tube.
7. The patient was then discharged from Hospital on 23. 04.2019. At this stage also her
WBC count was high and she was prescribed to continue taking her medicines for a
period of 15 days post discharge, which apparently was administered to her, as per
Vikrant.7
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ON BEHALF OF PEITIONER
8. The Vikrant reported that on 29.04.2019, his wife collapsed and had to be
admitted to a nearby different hospital. It was a General Hospital. Doctor
Vincent Mattu supervised Neha. Doctor Vincent told that the overdose of
antibiotic tablet, Polypod (Cefpodoxime), was the reason of Neha’s fatal
collapsing. She was not diagnosed properly in the previous hospital. She was
put on life-support ventilation system. Her health continued to deteriorate and
she finally succumbed to her illness on 01. 5.2019.
9. Vikrant, after the initial period of mourning, is stated to have consulted various
doctors, including his son, who a doctor is practicing in USA.
10. On the basis of discussion, Vikrant decided to sue the doctors in Quick Heal
Hospital for negligence which caused the fatal effect on his wife. Vikrant, the
appellant, filed a complaint with the Medical Council of India. He approached
the State Consumer Commission by pleading the hospital was liable for
medical negligence. The appellant sought to make out a case of gross medical
negligence by highlighting the manner in which medical treatment was
administered toNeha and her subsequent discharge from the Quick Heal
Hospital.:
(a) Inappropriate and ineffective medication;

(b) Premature discharge of the deceased despite her condition warranting treatment
in the ICU;
(c) Oral administration of Polypod antibiotic, despite her critical condition,
which actually required intravenous administration of the medicine.
11. The stand of the respondents was that when the patient was discharged, she was
afebrile, her vitals were normal and she was well-hydrated, with no infection in her
chest or urinary tract. She was stated to be clinically stable and that is why she was so
discharged with proper medical prescriptions for the next 15 days.
12. The State Commission decided in favour of the appellant and directed a
compensation of Rs.15 lakh and costs of Rs.51,000/- to be paid to Vikrant, husband of
the deceased.
13. Aggrieved by the said order of the State Commission, the respondents preferred an
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appeal before the National Consumer Disputes Redressal Commission (NCDRC),

which exonerated the respondents from all imputations of medical negligence.
14. Vikrant filed a Special Leave Petition (SLP 254 of 2019) before the Hon’ble
Supreme Court, against the orders of NCDRC. Leave has been granted. The case has
been listed as (Vikrant Mathur v. Quick Heal Hospital SLP 254 of 2019) for hearing
on 21st March, 2020.

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Issues Raised
1.

WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE

2.

WHETHER THE DOCTORS ARE NEGLIGENT

3.

WHETHER THE HOSPITAL IS VICARIOUSLY LIABLE

4.

WHETHER THE PETITIONER AND DOCTORS ARE CONTRIBUTORY NEGLIGENT

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Summary Of Arguments
ISSUE 1. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE

It is humbly submitted before the Hon’ble SC that, the Special Leave Petition filed by
the petitioner, Mr. Vikrant is maintainable, as the matter involves a substantial question of law of
general public importance. The arbitrary and hasty judgment of the NCDRC (National Consumer
Dispute Redressal Commission) exonerating the respondents from all imputations of medical
negligence has resulted in miscarriage of justice and if the SC does not intervene, it will result in
gross injustice. The Hon’ble SC should therefore, applying its wide jurisdiction conferred under
Art. 136 of the Constitution of India use corrective measures to correct the wrong done by the
decision of the NCDRC.
ISSUE 2. WHETHER THE DOCTORS ARE NEGLIGENT

It is contended that the Doctors are negligent as there were inappropriate and ineffective
medication, Premature discharge of the deceased despite her condition warranting treatment in
the ICU and Oral administration of Polypod antibiotic, despite her critical condition, which
actually required intravenous administration of the medicine. The council would like to affirm
that yes the Respondents are negligent to Vikrant.

ISSUE 3. WHETHER THE HOSPITAL IS VICARIOUSLY LIABLE

It is humbly submitted that the Doctors are the employee of the Hospital and the work done by
them were done during the course of employment. The Hospital authority is liable for the
negligence of professional men employed by the authority under contract of service as well as
contract for service. The work done by the Doctors in the capacity of an employee of the
Hospital comes under the purview of “Service” under S. 2(o)1 of The Consumer Protection Act,
1986.

ISSUE 4. WHETHER THE PETITIONER AND DOCTORS ARE CONTRIBUTORY NEGLIGENT

It is contended the petitioner himself is not at any fault as the patient was diagnosed at the
Hospital by the concerned Doctors and hence being administered to medication as per her health

1
Indian Medical Association v V P Shantha AIR1996 SC 550 (1995) 6 SCC 651

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condition. The petitioner also did not deny following any measures or medication which were
prescribed by the Doctors and also took adequate and reasonable care.

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Arguments Advanced
ISSUE 1. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE .

It is humbly submitted before the Hon’ble SC that, the Special Leave Petition filed by
the petitioner, Mr. Vikrant is maintainable, as the matter involves a substantial question of law of
general public importance. The arbitrary and hasty judgment of the NCDRC (National Consumer
Dispute Redressal Commission) exonerating the respondents from all imputations of medical
negligence has resulted in miscarriage of justice and if the SC does not intervene, it will result in
gross injustice. The Hon’ble SC should therefore, applying its wide jurisdiction conferred under
Art. 136 of the Constitution of India use corrective measures to correct the wrong done by the
decision of the NCDRC.

1.1 THE MATTER INVOLVES QUESTION OF LAW OF GENERAL PUBLIC IMPORTANCE

1.1.1. It is humbly submitted before the Hon’ble Court that the jurisdiction
conferred under Art. 136 on the SC are corrective one and not a restrictive one2
and can be invoked when a question of law of general public importance arises,3
by filing Special Leave Petition. It is well-settled that illegality must not be
allowed to be perpetrated and failure by the SC to interfere with the same would
amount to allowing the illegality to be perpetuated, 4 therefore a duty is enjoined
upon the SC to exercise its power by setting right the illegality in the judgments. 

1.1.2. Art. 136 provide residuary power to the SC to do justice where the court is
satisfied that injustice has been done.5 Illegality should not be allowed to be
perpetrated merely for the sake of upholding technicalities.6

2
Haryana State Industrial Corp. v. Cork Mfg. Co., (2007) 8 SCC 359
3
Sir Chunilal Mehta and Sons, Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314
4
 Pawan Kumar v. State of Haryana, (2003)11 SCC 241; See also, H.M. Seervai, Constitutional Law of India, Vol. 1, 832 (4th ed., Universal Law Publishing, New Delhi, 2010); See also, Halsbury’s
Laws of India, Vol. 35, 564 (2nd ed., Lexis-Nexis Butterworth Wadhwa, Nagpur, 2007)
5
C.C.E v. Standard Motor Products, AIR 1989 SC 1298; See also, H.M. Seervai, Constitutional Law of India, Vol. 2, 845 (4th ed., Universal Law Publishing, New Delhi, 2010).
6
J
anshed Hormusji Wadia v. Board of Trustees, Port of Mumbai, (2004) 3 SCC 214

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1.2. THE MATTER INVOLVES SUBSTANTIAL QUESTION OF LAW AND

GROSS INJUSTICE HAS BEEN DONE.

1.2.1. In this matter it is humbly submitted that there was a grave mistake on the
part of the Doctors in the administration of medicine ignoring a person’s Right to
Life granted under Art. 21 of The Constitution of India. Further the decision of
NCDRC which exonerated the respondents from all imputations of medical
negligence requires a superior intervention and it also needed to be discussed in
the light of earlier events and the judgement of the State Forum.

1.3. MRS NEHA WAS A CONSUMER AND SERVICE WAS PROVIDED TO

HER BY THE QUICK HEAL HOSPITAL FOR A CONSIDERATION.
1.3.1. According to Sec. 2 (1) (d) of the Consumer Protection Act, 1986,
‘consumer’ means any person who (i) Buys any goods for a consideration, which
has been paid or promised or partly paid and partly promised. (ii) Hires or avails
any services for a consideration, which has been paid or promised or partly paid
and partly promised. It also includes (a) Beneficiary of services who has availed
the services with approval of the person who has hired the services (b) A person
who has hired or availed services under any system of deferred payment. Sec.
2(1) (o) of Consumer Protection Act, 1986 says that, “service” means service of
any description which is made available to potential facilities in connection with
banking, financing insurance, transport, processing, supply of electrical or other
energy, board or lodging or both, entertainment, amusement or the purveying of
news or other information, but does not include the rendering of any service free
of charge or under a contract of personal service.

Sec. 9 in The Indian Contract Act, 1872 in furtherance of the argument provides explanation to
the relationship of consumer-service provider by way of an implied 7 contract because the
provider had engaged in treatment and the consumer had availed the same.

7
Section 9 in The Indian Contract Act, 1872

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In this case, Mrs. Neha has availed herself of the services provided by Quick Heal Hospital, Dr.
Shivakant Jhunjhunwala and Dr. Anurag. So, there is an implied promise for the payment of
services on part of Mr. Neha to the Hospital. Thus, my client is a consumer according to Sec.2(1)
(d) under COPRA, 1986.

ISSUE 2. WHETHER THE DOCTORS ARE NEGLIGENT

It is humbly submitted that the Respondent No. 2 Dr. Shivkant Jhunjhunwala was negligent in

conducting the diagnosis of the Mrs. Neha which attributed damage to her also ruining her further medical
treatment done by Respondent No. 3 Dr. Anurag. As the facts clearly said that the WBC count of
the deceased was high at the time of discharge and the infection was not cured properly and the
argument we would like to put forward is that by not informing the appellant about the serious
risk involved in the discharge the Respondent No. 3 that id the Hospital committed a breach of
duty to take care amounting to professional negligence on their part as a renowned private
Hospital. The deceased collapsed the very next day and was taken to a different Hospital where
she was put under ventilation and died later the same day. To be precise we are initially defining
the points on which we find the Respondents are liable.
PROFESSIONAL NEGLIGENCE
In Ramaswamy Iyer’s book ‘THE LAW OF TORTS’’, he throws some light on the topic of
professional negligence. Accordingly .A person who holds himself out ready to give medical
advice and treatment when consulted by a patient owes him certain duties namely a duty of care
in deciding whether to undertake the case ,a duty of care in deciding what treatment to give or a
duty of care in the administration of that treatment .A breach of any of these duties gives a right
of action for negligence to patient .The doctor no doubt has a discretion in choosing treatment
which he proposes to give to the patient and such discretion is relatively ample in the in cases of
emergency.

A practitioner can only be held liable in this respect if his diagnosis is so palpably wrong as to
prove negligence, that is to say .if his mistake is of such nature as to imply an absence of
reasonable skill in the profession. Where a patient suffered damage after there had been a
departure from the orthodox course of treatment, the court had to inquire whether the doctor had

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taken all proper factors into account prior to taking action and order to determine whether that
departure was justified. If it was not justified there was a breach of duty to the patients.1

The standard of care required of a doctor in the course of his diagnosis and treatment, namely
the exercise of the ordinary skill which a doctor in the Respondent’s position would be expected
to poses.[ hills v potter & ors [1983] 3 All ER 716 ; Sidway v Bethlem royal hospital [1984] 1
All ER 1018 ; Thake & anothers v Maurice [1984] 2 All ER 513 (

Vasectomy - failure to give warning of possible regaining of fertility –a breach of surgeon’s duty
of care.

In an Australian case relating to breach of duty in ‘’failure to warn’’, the petitioner Mrs. Hart
was suffering from persistent sore throat .Dr. Chappel, whom she consulted diagnosed a
pharyngeal pouch in her esophagus and recommended surgery .Dr. chapel , however, failed to
inform her of the small, but known risk of infection and damage to vocal cords resulting in
voice loss though she has expressed her concern about it . in spite of there being no negligence
in performing the surgery , the risk materialized and Mrs. Hart suffered serious voice loss .The
finding was that had she been warned of the risk, she would have sought further advice and
she would have wanted the operation performed by the most experienced person available .On
these the HC of Australia by majority upheld the decree for award of damages . The Australian
case was referred with approved by the House of Lords in Chester v. Afsher.

In Chester v. afsher, the claimant patient underwent surgery for removal three introverbal discs
as a cure for severe back pain. Although the claimant has questioned the surgeon she was not
told about the known risk of nerve damaging in paralysis which she suffered after the operation.
Had she been told about this risk she would not have at least then undergone the operation .On
these facts the claimant was held entitled to damages .There was a breach of duty on the part of
the surgeon in not informing the patient of the risk but the patient would remained remedy
less had the conventional but for test were applied ,therefore, in the special circumstances of
the case and to prevent injustice that test was not applied .

The Hon’ble Supreme Court of India in Kusum Sharma v. Batra Hospital8 said that negligence is the
breach of a duty to do something, which a reasonable man guided by those considerations which ordinarily
8
2010 3 SCC (480)

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regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would
do.
2.1. THE DOCTORS AT THE HOSPITAL WERE PROFESSIONALLY
NEGLIGENT
According to the facts of the case it is clear that the doctors acted negligently. The patient was diagnosed
by the Doctors according to their will and full so-operation from the petitioner’s side but the n also the
medication which was done was wrong.
2.1.1. First requirement is satisfied if it must reasonably foreseeable for Respondent to occur the
damage on petitioner. There are two points to consider whether Respondent must be able to
foresee, bearing the kind of harm involved. For establishing foreseeability, two elements are to
be satisfied:
(a) Respondent must foresee that the damage is to be caused to a particular
complainant rather than just to people in General. In other words, Respondent
must foresee that complainant is part of a category of people who might
be affected by the conducts of Respondent.9
(b) The duty must relate to a particular kind of harm which Respondent
could reasonably foresee as arising from its actions.10
It is evident from the facts of the case that the Respondent failed to fulfil the
above-mentioned requirements. They knew the risk that was posed by the
method of administration of the medication yet they went ahead with the
same. This action of theirs is the primary reason for the death.
2.1.2. Second requirement is the existence of proximate relationship between the
parties. In many cases proximity and foreseeability are treated as coextensive and
even interdependent. Thus when Respondent must be able to foresee the damage
suffered by petitioner the proximity is very likely to be satisfied. In addition
proximity means “a measure of control over and responsibility for the potentially
dangerous situation.11
Thus duty of care is owed only to persons who are closely and directly affected by
one’s act that it is reasonable for one of them in contemplation. In the present case
9
Haley v London Electricity Board, (1964)3 ALL ER 185
10
AIR 1969 SC 128
11
Sutradhar v Natural Environment Research Coouncil (2006) 4 All ER 490

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also the defendant provided services to the complainant. Therefore there existed
between the complainant and the Respondent such relation as it rendered must
and reasonable that the liability in negligence may be imposed.
As between the Respondent and the petitioner there is sufficient relationship of
proximity such that in reasonable contemplation of the former carelessness on its part caused
damage to the latter in which prima facie duty of care arises.12
2.1.3. It is humbly submitted that Dr. Jhunjhunwala and Dr. Anurag were professionally
negligent on their part by not informing the appellant about the hazardous risk involved
in the medication as the medicine that was administered on her “Polypod” and This
medicine is used for the treatment of acute exacerbations of chronic bronchitis, a
condition characterized by sudden worsening of chronic symptoms such as a
cough, shortness of breath, wheezing, etc. associated with chronic bronchitis.

Cystitis

This medicine is used in the treatment of cystitis, a bladder infection caused by

bacteria such as E. coli, Enterococci, Klebsiella pneumoniae, etc.

Gonococcal Infection

This medicine is used in the treatment of gonococcal infection, a sexually

transmitted bacterial infection caused by the bacteria Neisseria gonorrhoeae.

Pneumonia

This medicine is used in the treatment of community-acquired pneumonia which

is a most common type of lung infection caused by bacteria such as Streptococcus
pneumoniae, Haemophilus Influenzae, etc.

Sinusitis

This medicine is used in the treatment of sinusitis, an inflammation of the sinuses,

caused by bacteria such as Streptococcus pneumoniae, Haemophilus influenza,
etc.

12
State of Maharastra v Dhanajay Bhagal (2010) 2 AIR Bom R 583

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Pharyngitis/Tonsilitis

This medicine is used for the treatment of infections of the throat and airways
leading to the lungs, namely tonsillitis and pharyngitis, caused by bacteria such as
Streptococcus pneumoniae, Haemophilus influenzae, etc..

This medicine is known for impairing kidney functions and causing heavy
diarrhea if an overdose is being given. The appellant trusted the Respondent No. 3
as in a doctor-patient relationship and also based on the information given by the
doctor the appellant agreed to undergo the medication. According to the medical
ethics ,although a physician has full liberty to adopt any of the accepted theories
of medicine and surgery in which he honestly believes in but ordinary and
reasonable care and skill should be applied at all times with all the patients. The
question is not the competency of the Doctor but it is the criterion of a reasonable
man since negligence is also the omission to do something which a reasonable
man, guided upon those considerations which ordinarily regulate the conduct of
human affairs, would do or doing something which a prudent and reasonable man
would note to page 242 ‘’breach of duty’’ –tort by Winfield and jolowicz. Also,
reasonable varies with circumstances questioning. The appellant was already
suffering from several diseases and the failed medication and premature discharge
from the hospital knowing the WBC count has not been decreased aggravated the
diseases further thus causing death. The appellant was not informed about this
risk involved although Respondent No. 2 the doctor was fully aware about the
risk. He brought in his prejudice being ‘critical’ of the recent research thus
disregarding it. It was a duty on his part to inform the patient about any serious
risks involved in the medication and early discharge so that he could give a free
and fair voluntary consent to undergo the same and sought further advice from
some more experienced person available so as to recover the injury. But due to
the faulty judgment of the Doctors and not informing about the known risk to the
appellant, she died.

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On the above mentioned points the respondents seek to prove that the Doctors that are
Respondent No. 2 and Respondent No. 3 are professionally negligent in their conduct.

ISSUE 3. WHETHER THE HOSPITAL IS VICARIOUSLY LIABLE

It is humbly submitted that the Doctors are the employee of the Hospital and the work done by
them were done during the course of employment. The Hospital authority is liable for the
negligence of professional men employed by the authority under contract of service as well as
contract for service. The work done by the Doctors in the capacity of an employee of the
Hospital comes under the purview of “Service” under S. 2(o) of The Consumer Protection Act,
1986.

Furthermore when he was to giving medication to the appellant’s wife he was within of scope
and within his course of employment and hence the hospital can be held vicariously liable for his
actions. Historical tests centered around finding control between a supposed employer and an
employee, in a form of master and servant relationship.
The roots for such a test can be found in Yewens v Noakes13, where Bramwell LJ stated that:
"...a servant is a person who is subject to the command of his master as to the manner in which
he shall do his work." The control test effectively imposed liability where an employer dictated
both what work was to be done, and how it was to be done. This is aptly suited for situations
where precise instructions are given by an employer; it can clearly be seen that the employer is
the causal link for any harm which follows. If on the other hand an employer does not determine
how an act should be carried out, then the relationship would instead be one of employer and
independent contractor. This distinction was explained by Slesser LJ:
“ It is well established as a general rule of English law that an employer is not liable for the acts
of his independent contractor in the same way as he is for the acts of his servants or agents, even
though these acts are done in carrying out the work for his benefit under the contract. The
determination whether the actual wrongdoer is a servant or agent on the one hand or an
independent contractor on the other depends on whether or not the employer not only
determines what is to be done, but retains the control of the actual performance, in which case
the doer is a servant or agent; but if the employer, while prescribing the work to be done, leaves
the manner of doing it to the control of the doer, the latter is an independent contractor. ” Hence
13
(1881) 6 QBD 530.

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it is clearly evident that the Doctors were employee as the manner of doing his work was not left
to his will, this proves that he was an employee of the Respondent. Furthermore in the light of
the events it can be clearly concluded that his actions were also within his course of employment
and he went of bounds. Hence this argument also strengthens the point that his actions can make
the Respondent (1) vicariously liable.
Hence from the above stated arguments it is clearly evident that the Respondent(1) can be held
vicariously liable for the acts of junior doctor.

ISSUE 4. WHETHER THE PETITIONER AND DOCTORS ARE CONTRIBUTORY NEGLIGENT

It is contended the petitioner himself is not at any fault as the patient was diagnosed at the
Hospital by the concerned Doctors and hence being administered to medication as per her health
condition. The petitioner also did not deny following any measures or medication which were
prescribed by the Doctors and also took adequate and reasonable care.

It is humbly submitted that there was no contributory negligence on the part of the appellant. As
firstly, the Respondent No. 2 Dr. JhunJhunwala assured the appellant saying that his wife is
having chills and fever.

Also when Neha was tested by Dr. Anurag that is Respondent No. 3, she was administered with
certain medicines which were not suitable for her conditions as well. The WBC count clearly
showed some infections and the diagnosis of the patient was done accordingly wholly by them.

Secondly, coming to the Respondent no. 3 Dr. Anurag , although the appellant gave consent to
undergo the medication but he was not aware of the risk to his overdose which was known
beforehand to the doctor and later on confirmed by Dr. Vicent Mattu of General Hospital. He
trusted the Doctor as he was a renowned one of the place and thus went by his advice to take the
medication and early discharge.

Also after the failure of medication and the injection which was not able to reduce the WBC count which
led to the appellant’s wife collapse the very next day.

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

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 4TH INTRA UNIVERSITY MOOT COURT COMPETITION, 2020
ON BEHALF OF PETITIONER

Prayer

Wherefore in the light of the facts stated, arguments advanced, points raised and the
authorities cited,

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 4TH INTRA UNIVERSITY MOOT COURT COMPETITION, 2020
ON BEHALF OF PETITIONER

1. Hold Dr. Shivakant Jhunjhunwala, Dr. Anurag and The Quick Heal Hospital liable for medical
negligence and deficiency of service, and order provision of compensation to the aggrieved.

2. Award compensatory damages to be paid by them for medical negligence.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

And for this, the Petitioner as in duty bound, shall humbly pray.

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