Prayer

Team Code: C 14- 22

Commonwealth Moot Court Competition, 2014

In the District Court at Kolkata

Tony Stanley...Claimantv.Dr. Sachin Pawar.1st DefendantAndDr. Debjyoti Sarkar..2nd Defendant

Table of ContentsMemorial for Claimant

30

Table of ContentsTable of ContentsiiTable of AuthoritiesvStatement of JurisdictionxiiStatement of FactsxiiiSummary of PleadingsxviI.The Kolkata District Court has Jurisdiction to Adjudicate this Dispute.xviPleadings1I. That the Kolkata District Court has Jurisdiction to Adjudicate this Dispute.1A. The Code of Civil Procedure allows the Jurisdiction of Kolkata District Court.1B. International Conventions and Principles recognize the Jurisdiction of Kolkata District Court.1II. That the Defendants are Compositely Negligent in Carrying Out the Treatment of the Claimants Wife.3A. Two or More Persons Have Carried out the Treatment.3B. The Treatment has Been Negligently Carried Out.4i. The defendants did not exercise ordinarily skill and care.4ii. The established and accepted norms of medical practice have not been followed.9iii. The damages are a direct consequence of the act of the defendants.12III. The Liability of the Defendants cant be Exempted through the Patient Undertaking cum Guideline Document.13A. There is a Fundamental Breach of a Standard Form Contract.13B. The Liability in Tort cannot be Exempted by a Contractual Clause.14C. The Patient Undertaking cum Guideline Document is against the Public Policy.15D. The Provision of 16 of the Indian Contract Act is Attracted.16IV. The Liability of the Defendants would not Mitigate as The Claimant was not Negligent.18A. The Claimant had taken Reasonable Care for the Safety of the Deceased.18B. The Negligence, even if Present, was not Substantial.18C. The Claimant took the Safest Course of Action in Light of the Dangerous Situation Caused By The Defendants.19V. That There can be No Bar on the Claimant to Initiate a Legal Proceedings in UK.21A. Difference in the Heads of Damages in various Jurisdictions will Lead to Different Causes of Action.21i. Ascertaining the heads of damages is a substantive issue.22ii. Non- recognition of any head of damage leads of a separate cause of action.22iii. Non- recognition of damages under the head of bereavement in Indian law may lead to a separate cause of action.23iv. The Principle of claim preclusion is inapplicable.23B. Avoid any Chances of Delay in Grant of Relief from the Indian Courts.24VI. That the Claimant is Entitled to Sue and Claim Damages under Various Heads.25A. Entitlement to Recover Pecuniary Damages.25i. Loss of income of the deceased leading to loss of dependency.26ii. Costs in terms of expenses incurred on various items.27B. Entitlement to Recover Non- Pecuniary Damages.27i. Pain and Suffering of the Deceased.27ii. Loss of Consortium.28iii. Mental and Emotional Distress of the Claimant.28C. Entitlement to Recover Punitive Damages.29Prayer30

Table of Contents

Table of Authorities

StatutesCivil Jurisdiction and Judgments Act, 198223Code Civ. Proc. 1908, No. 5 of 19081Fatal Accidents Act 1855, No.12 of 185525, 27Fatal Accidents Act, 197623, 28Indian Contracts Act 1872, No. 9 of 187215, 16Legal Representatives Suits Act 1855, Act, No.12 of 185525, 26, 27Private International Law (Miscellaneous Provisions) Act 199521

Indian CasesAkshoy Kumar Patil v. New India Assurance Co., A.I.R. 2007 Del. 13616Ashwani Kumar Mishra v. P. P.MuniamBabu, 1999 A.C.J. 110525, 27B.V. Nagaraju v. Oriental Insurance Co. Ltd, (1996) 4 S.C.C. 64713, 14Chainatamano v. Surendranath, I.L.R. (1956) Cut. 5874Chinnappa Reddy, J.; M.V. Elisabeth v.Harwan Investment & Trading Pvt. Ltd., Goa, [1992] 1 S.C.R. 10032Company of India Ltd. v.BirendraBahadurPandey, 1984 (2) E.C.C. 1422DevkiNandan v. GokliBai, (1886) 7 Punj. L.R. 32516Dr. Balram Prasad v. Dr. KunalSaha and Ors.,(2014) 1 S.C.C. 38423Dr. KusaldasPammandasv. State of Madhya Pradesh, A.I.R. 1960 M.P. 507Dr. Laxman v. Dr. Trimbak, A.I.R. 1969 S.C. 1284erma, J., M.V. Mariner IV v.V.S.N.L.,1998 (5) Bom. C.R. 3122GhanshymdasBhagwandasv. State of Madhya Pradesh; 1977 A.C.J. 1827Gherulal v. MahadeodasMaiya, A.I.R. 1959 S.C. 78115Gramophone Company of India Ltd. v.BirendraBahadurPandey, 1984 (2) E.C.C. 1422Indian and General Investment Trust Ltd. v. Sri RamchandraMardarajaDeo, Raja of Khalikote, A.I.R. 1952 Cal. 50821Inland Water Transport Corporation Limited and OrsvsBrojoNathGanguly and Ors,1986 AIR 157116Jacob Mathew v. State of Punjab, (2005) 6 S.C.C. 14, 15, 16M.K. Usmankoya v. C.S. Santha, AIR 2003 Ker 19116M.Siddalingappa v. T.Nataraj, A.I.R. 1970 Kant.15415M.V. Elisabeth v.Harwan Investment & Trading Pvt. Ltd., Goa, [1992] 1 S.C.R. 10032Mahboob Khan v. Hakim Abdul Rahim, A.I.R. 1964 Raj. 25016Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and Ors., A.I.R. 2010 S.C. 11627, 11Martin F. D'Souza v. Mohd. Ishfaq, A.I.R. 2009 S.C. 20496Minor Marghesh K. Parikh v. Dr. Mayur H. Mehta, A.I.R. 2011 S.C. 2497Municipal Corporation of Greater Bombay v. LaxmanIyer, (2003) 8 S.C.C. 73118National Insurance Co. Ltd. v. Indira Srivastava, (2008) 2 S.C.C. 76326PaschimBangaKhetMazdoorSamity v. State of West Bengal, (1996) 4 S.C.C. 3729PoonamVerma v. Ashwin Patel, A.I.R.1996 S.C.21115Pujamma v. G. Rajendra Naidu, A.I.R. 1988 Mad. 1094Pushpa v. Shakuntla, (2011) 2 S.C.C. 24028R.S.Deebo v. M.V.Hindlekar, A.I.R. 1995 Bom. 6815Rajesh and Ors. v. Rajvir Singh and Ors., 2013 (9) S.C.C.5428Ram Nivas v. State of Uttar Pradesh, 1968 Cri.L.J.6357Rani Gupta v. United India Insurance Company Ltd., (2009) 13 S.C.C. 49828Rattan Chand Hira Chand v. Askar Nawaz Jung, (1991) 3 S.C.C. 6715Shiv Indersen Mirchandani of Bombay and Anr. v. Natasha Harish Advaniand Ors., 2002 (2) Bom. C.R. 4362ShivrajVasantBhagwat v. Shevanta D Indulkar, 1997 A.C.J. 101414Smt. Satya v. ShriTeja Singh, A.I.R. 1975 S.C. 10521Spring Meadows Hospital &Another v.HarjolAhluwalia&Anr.,(1998) 4 S.C.C. 397State of Haryana v. Santra, A.I.R. 2000 S.C. 18885Subbaya v. Verayya (1935) M.W.N. 10433Sukumar Mukherjee and BaidyanathHalder v. Malay Kumar Ganguly and Anr.,(2004) ILR 1 Cal 33228Sunil Sharma v. Bachitar Singh, (2011) 11 S.C.C. 42528T.O. Anthony v. Karvarnan, (2008) 3 S.C.C. 7484Thomson-CSF v. National Airport Authority of India, A.I.R. 1993 Del. 25215V. KishanRao v. Nikhil Super Speciality Hospital, 2010 (5) S.C.R. 15Vidya Devi v. Madhya Pradesh State Road Transport Corporation, A.I.R. 1975 M.P. 8918Vishakha v.State of Rajasthan, A.I.R. 1997 S.C. 30112

UK CasesAlexander v. Railway Executive, [1951] 2 All E.R. 44213Australian Commercial Research and Development Ltd. v. A.N.Z.McCaughan Merchant Bank Ltd., [1989] 3 All E.R. 6524BeaumontThomas v. Blue Star Line Ltd., [1939] 3 All E.R. 12714Bernett v. Chelsea and Kensington Hospital Management Committee, (1986) 1 All E.R. 108612Black v. Yates22Bolam v. Friern Hospital Management Committee4, 5, 9Boy Andrews v. St. Roguvald, (1947) 2 All E.R.(H.L.) 35019Chaplin v. Boys, [1971] A.C. 356 (H.L.)21, 22Chester v. Afshar (2002) 3 All E.R. 5525Edmunds v. Simmonds [2001] 1 W.L.R. 100322G. H. Renton, Ltd. v. Palmyra Trading Corporation of Panama, [1957] A.C.(H.L.) 14914Hamlyn & Co v.Talisker Distillery, (1894) 21 R (H.L.)2121Harding v. Wealands, [2006] UKHL 3222Hume v. Oldakre, 171 E.R. 4943Petrie v. Lamont, (1842) C. Marsh. 934Robinson v. The Post Office, (1974) 2 All E.R. 73712S Parks v. Edward Ash Ltd., (1943) 1 K.B. 22318Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital,[1985] A.C. (H.L.) 87117Slater v. Baker, 95 E.R. 8604Swadling v. Cooper, (1931) A.C. (H.L.) 118Thake v. Maurice (1986) 1 All E.R. 4975Thompson v. London County Council, (1899) 1 Q.B. 8403White v. John Warwick & Co Ltd, [1953] 2 All ER 1021.14Whitehouse v. Jordan, (1981) 1 All E.R. 2679

Other casesBennett v.Coatbridge Health Centre, [2011] C.S.O.H. 9 (Scot.)10Bisso v. Inland Waterways Corporation, 349 U.S. 85 (1955)15California Powder Works v. Atlantic &Pacific R.R. Co., 113 Ca. 329, 336, 45 Pac15Chaplin v. Hawes, (1828) 3 C. & P. 55419Fox v. Health Net, Riverside Sup Ct Case No. 219692 (1993)10Huber v. Steiner, (1835) 2 Bing. N.C. 20221In Re Fulds Estate (No. 3),[1966] 2 W.L.R. 71721Jackson v Power 743 P.2d 1376 (Alaska 1987)9Karsales (Harrow) Ltd. v. Wallis, [1956] 1 W.L.R. 93614Kuhl v. Lincoln Nat'l Health Plan of Kansas City, Inc., 999 F. 2d 298 (8th Cir. 1993)10Landgraf v. USI Film Prods, 511 U.S. 244 (1994)29Lanphier v. Phipos, (1838) 8 C. & P. 4754Mostyn v. Fabrigas, 1 Cowp. 16122Pappas v. Asbel, 675 A.2d 711, 713 (Pa. 1996)10SmeatonHanscombe v. Sassoon I.Setty, (1953) 1 W.L.R. 146814Smith v. The London and S.W. Railway Company, (1870-71) L.R. 6 C.P. 1412Spurling Ltd. v. Bradshaw, [1956] 1 W.L.R. 46113Waterhouse v. Australian Broadcasting Corp., (1989) 86 A.C.T.R. 1 (Australia)22Welch v. Epstein 536 S.E. 2d 408 (2000)29Williams v. Health America 41 Ohio App. 3d 245 (1987)9Wood v. Thurston, 1953 C.L.C. 68715

Article-Alan D.Widgerow, Toxic epidermal necrolysis management issues and treatment options, 1Int. J. Burnsand Trauma42, 47 (2011)12CrispianScully & Jose Bagan, Oral mucosal diseases: erythema multiforme,46 (2) Br J Oral MaxillofacSurg 90, 94 (2008)8G. 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)8H.B. Sales, Standard Form Contracts, 16 (3) The Modern Law Review318, 328 (1953)13Janeen 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)21Jean Revuzet al.,Treatment of toxic epidermal necrolysis: Creteils experience, 123 (9)Arch. Dermatology1156, 1157 (1987)8Mark R. Patterson, Standardization of Standard Form Contracts, 52 (2) William and Mary Law Review 328 (2010)13N.H. Cox & I.H. Coulson, Diagnosis of skin diseases, in the 1 Rookss Textbook of Dermatology 5.2 (Tony Burns et al. eds., 2010)6Nadia 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)8Nick J Levell, Stephen K Jones et al, Dermatology, Royal College of Physicians 2013, p.81, available at www.rcplondon.ac.uk/dermatology10P.H. Halebianet al.,Improved burn center survival of patients with toxic epidermal necrolysis managed without corticosteroids,204 (5) Annals of Surgery503, 512(1986)7PrashantTiwari et al.,Toxic epidermal necrolysis: an update, 3 (2) Asian Pacific Journal of Tropical Disease 85, 86 (2013)6Robert A. Seligson, Contractual Exemption for liability from negligence, 44 (1) California Law Review121, 128 (1956)14Sandipan Dhar, Systematic corticosteroids in toxic epidermal necrolysis, 62 (4) Ind. J. Dermatology and Leprology 210, 270 (1996)8T.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)16Thomas Harr&Lars E French, Toxic Epidermal Necrolysis and Stevens-Johnson Syndrome, 5 Orphanet Journal of Rare diseases 1, 2 (2010)5, 6WW Cook, Substance and Procedure in the Conflict of Laws, 42 Yale L.J. 333, 334 (1933)21

Books-Anne Lee, Adverse Drug Reactions 140 (2005)5, 6Diceyet al., The Conflict Of Laws 177 (Lawrence Collins ed.,14th ed. 2000)21, 23G.C Cheshire et al., Cheshire and Norths Private Institutional Law 67-8 (James Facwett ed., 13th ed. 1999)21Lowell A. Goldsmith et al., Fitzpatrcicks Dermatology in General Medicine 649 (8th ed. 2012)7, 8, 11Luigi Naldi, The field and its boundaries, in the Evidence Based Dermatology 3 (Hywel Williams et al. eds., 2014)10Ratanlal and Dhirajlal, The Law of Torts 244 (G.P. Singh eds., 26th ed. 2013)12, 19, 26, 27Tapas Kumar Koley, Medical Negligence and the Law in India: Duties, Responsibilities, Rights 98 (1stedn. 2010)27Winfield &Jolowicz, Tort 22-9 (Rogers.. ed., 18thedn., 2010)29

Table of Authorities

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 Jurisdiction

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 PawarMr. Tony Stanley and his wife Sharon Stanley obtained the services of Dr. Sachin Pawar, a doctor at Green Meadows Diagnostic Centre at Kolkata on 7th 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.

Treatment given to Mrs Sharon Stanley at VasantechWhen 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 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 SarkarMr. 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.

Statement of Facts

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 1st 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.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.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.

Summary of Pleadings

PleadingsI. That the Kolkata District Court has Jurisdiction to Adjudicate this 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.[footnoteRef:2] It also allows an option to a party to sue at the Court in whose territoriality the defendant resides or works for personal gain.[footnoteRef:3] [2: Code Civ. Proc. 1908, No. 5 of 1908, 19. (India Code)] [3: Id.]

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.[footnoteRef:4] [4: Moot Court Problem, 2, 6.]

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,[footnoteRef:5] so much so that even if India is not a signatory to a convention, still the Courts can rely on these international conventions.[footnoteRef:6] [5: 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.] [6: Shiv Indersen Mirchandani of Bombay and Anr. v. Natasha Harish Advaniand 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.)]

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.[footnoteRef:7]A substantial connection is said to exist when a significant part of the transaction or occurrence has occurred in the forum state.[footnoteRef:8] [7: UNIDROIT Principles of Transnational Civil Procedure, art. 2.1.2 (2004) [hereinafter UNIDROIT].] [8: Id.]

6. Similar reliance can be placed on the Hague Convention on the Recognition and Enforcement of Foreign Judgments,[footnoteRef:9] which also considers the jurisdiction of the Court in whose jurisdiction the facts, which occasioned the damage occurred. [9: Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matter, art. 10 (4) (1971).]

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.

II. That the Defendants are Compositely Negligent in Carrying Out the 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.[footnoteRef:10] Thus, the person needs to be injured as a result of the negligence on part of two or more wrongdoers.[footnoteRef:11] 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.[footnoteRef:12] [10: T.O. Anthony v. Karvarnan, (2008) 3 S.C.C. 748.] [11: Id.] [12: Thompson v. London County Council, (1899) 1 Q.B. 840.]

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.[footnoteRef:13] Moreover, the tort-feasors cannot insist on having others joined as defendants.[footnoteRef:14] The mere omission to sue some will not disentitle the plaintiff from claiming full relief against those who are sued.[footnoteRef:15] [13: Hume v. Oldakre, 171 E.R. 494.] [14: Subbaya v. Verayya (1935) M.W.N. 1043.] [15: Id.]

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 1st 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.B. The Treatment has Been Negligently Carried Out.12. An injury accruing[footnoteRef:16] 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.[footnoteRef:17] Thus the causation of an injury as a result of the negligence forms the essential component of composite negligence.[footnoteRef:18] [16: Chainatamano v. Surendranath, I.L.R. (1956) Cut. 587.] [17: Petrie v. Lamont, (1842) C. Marsh. 93 (Eng.)] [18: See T.O. Anthony, (2008) 3 S.C.C. 748; Pujamma v. G. Rajendra Naidu, A.I.R. 1988 Mad. 109.]

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[footnoteRef:19] 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. [19: (1957) 2 All E.R. 118.]

15. A doctor needs to ensure reasonable degree of care and caution while carrying out the treatment of a patient.[footnoteRef:20] Moreover, the treatment of a doctor has to be judged in light of the circumstances of the each case.[footnoteRef:21] It is incumbent upon the medical professional to bring a fair, reasonable and competent degree of skill while carrying out a medical treatment.[footnoteRef:22] [20: Jacob Mathew v. State of Punjab, (2005) 6 S.C.C. 1.] [21: Dr. Laxman v. Dr. Trimbak, A.I.R. 1969 S.C. 128.] [22: Lanphier v. Phipos, (1838) 8 C. & P. 475; Slater v. Baker, 95 E.R. 860.]

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 1st 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.[footnoteRef:23] It is the duty of a medical professional to examine a patient closely and accurately diagnose the ailment of the patient.[footnoteRef:24]A doctor would be held liable for not applying with reasonable competence the medical skills of which he/she is possessed.[footnoteRef:25] [23: Poonam Verma v. Ashwin Patel, A.I.R.1996 S.C.2111; State of Haryana v. Santra, A.I.R. 2000 S.C. 1888.] [24: Wood v. Thurston, 1953 C.L.C. 6871 (cited in V. Kishan Rao v. Nikhil Super Specialty Hospital, 2010 (5) S.C.R. 1).] [25: See Bolam, (1957) 2 All E.R. 118.]

18. The diagnosis should appear reasonable in light of the circumstances of the case.[footnoteRef:26] Moreover, the inherent risks associated with every treatment needs to be kept in mind at the time of diagnosis.[footnoteRef:27] [26: Chester v. Afshar, (2002) 3 All E.R. 552.] [27: Thake v. Maurice, (1986) 1 All E.R. 497.]

19. The claimants wife had complained of acute fever, rashes and pain when she approached the 1st defendant for treatment.[footnoteRef:28] [28: Moot Court Problem, 1.]

20. Initial symptoms of Toxic Epidermal Necrolysis (TEN) include pain and fever along with stinging eyes.[footnoteRef:29] The patient might also experience chest pain, joint pain, nausea and vomiting.[footnoteRef:30] The prodrome typically lasts from 1 day to 3 weeks.[footnoteRef:31] The acute phase however consists of persistent fever and burning and painful skin rash.[footnoteRef:32] When the rash appears, it may be over large and varied parts of the body and it is usually warm and appears red.[footnoteRef:33] An analysis of the skin biopsy would show typical full thickness epidermal necrolysis due to keratinocyte apoptosis.[footnoteRef:34] 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.[footnoteRef:35] [29: Thomas Harr & Lars E French, Toxic Epidermal Necrolysis and Stevens-Johnson Syndrome, 5 Orphanet Journal of Rare diseases 1, 2 (2010).] [30: Anne Lee, Adverse Drug Reactions 140 (2005).] [31: Toxic Epidermal Necrolysis, (Oct 10, 2014, 9:30 PM), www.emedicine.medscape.com/article/229698-overview.] [32: Prashant Tiwari et al., Toxic epidermal necrolysis: an update, 3 (2) Asian Pacific Journal of Tropical Disease 85, 86 (2013).] [33: Id.] [34: Thomas Harr & Lars E French, supra note 28.] [35: Coakley v. Dr. Rosie, (2014) E.W.H.C. 1290.]

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.[footnoteRef:36] 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.[footnoteRef:37] [36: 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).] [37: Anne Lee, Adverse Drug Reactions 128 (2005).]

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.[footnoteRef:38]If the medical professional is ignorant of the science of medicine while prescribing the medication and its dosage, then a prima facie case of negligence builds upon the doctor.[footnoteRef:39] 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.[footnoteRef:40] [38: Martin F. D'Souza v. Mohd. Ishfaq, A.I.R. 2009 S.C. 2049.] [39: 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.] [40: 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.]

24. The claimants wife was administered 80 mg of Depomedrol straightway and prescribed two injections daily for three days from 7th 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.[footnoteRef:41] [41: Moot Court Problem, 2, 3.]

25. Depomedrol (methylprednisolone) is an anti-inflammatory steroid.[footnoteRef:42] Corticosteroids are double-edged weapons, insofar as they can have beneficial as well as huge untoward effects such as immunosuppression.[footnoteRef:43] 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.[footnoteRef:44] 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.[footnoteRef:45] [42: Depomedrol Datasheet, (Oct 5, 2014, 8 AM),www.medsafe.govt.nz/profs/datasheet/d/depomedolinj.pdf.] [43: Malay Kumar Ganguly v. Dr. Sukumar Mukherjee and Ors., A.I.R. 2010 S.C. 1162. ] [44: Prof. J.E. Revuz & J.C. Rojeau, Cutaneous Medicine and Surgery (cited in Malay Kumar Ganguly, supra note 42).] [45: 2 Lowell A. Goldsmith et al., Fitzpatrcicks Dermatology in General Medicine 649 (8th ed. 2012).]

26. Prednisolone is a corticosteroid that has anti-inflammatory and mineralocorticoid properties.[footnoteRef:46] The steroidal qualities of prednisolone make it as unfit for the treatment of TEN as Depomedrol.[footnoteRef:47] The people who receive corticosteroid are generally at a worse off position than those who do not use such steroids for the purpose for TEN.[footnoteRef:48] The patients using such steroids are prone to more complications and a longer hospital stay.[footnoteRef:49] [46: Prednisolone Datasheet, (Oct 5, 2014, 8:45),www.medsafe.govt.nz/profs/datasheet/d/prednisonetab.pdf] [47: P.H. Halebianet al.,Improved burn center survival of patients with toxic epidermal necrolysis managed without corticosteroids,204 (5) Annals of Surgery503, 512(1986).] [48: Jean Revuzet et al., Treatment of toxic epidermal necrolysis: Creteils experience, 123 (9) Arch. Dermatology 1156, 1157 (1987).] [49: L. French & C. Prins, Erythema multiforme, Stevens-Johnson syndrome and toxic epidermal necrolysis, 290 (J.L. Bolognia et al. eds., 2nd ed. 2008).]

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.[footnoteRef:50] Systematic steroids have become increasingly dangerous for treatment of TEN owing to the increased chances of mortality.[footnoteRef:51] Hence the use of antibiotics, anticonvulsants and non-steroidal inflammatory drugs has become preferable now.[footnoteRef:52] [50: Prashant Tiwari et al., supra note 31.] [51: 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)] [52: 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).]

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.[footnoteRef:53] High dosage at the early stages can benefit the patient if it is withdrawn at the appropriate time.[footnoteRef:54] Continuing of the use of steroids, however, could be quite detrimental for the patient.[footnoteRef:55] [53: Crispian Scully & Jose Bagan, Oral mucosal diseases: erythema multiforme,46 (2) Br. J. Oral Maxillofac Surg. 90, 94 (2008).] [54: Sandipan Dhar, Systematic corticosteroids in toxic epidermal necrolysis, 62 (4) Ind. J. Dermatology and Leprology 210, 270 (1996). ] [55: Depomedrol Datasheet, supra note 41.]

29. The risk of pneuomonia and septicemia also gets highly increased by corticosteroids.[footnoteRef:56] They may even get masked and may reach an advanced stage before being recognized.[footnoteRef:57] [56: 2 Lowell A. Goldsmith et al., supra note 44 at 651; Prednisolone Datasheet, supra note 45.] [57: Id.]

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 1st defendant till it was transferred to the 2nd defendant.[footnoteRef:58]It is submitted that the conduct of the 1st defendant, while in Vasantech, was regulated by the Patient Undertaking Cum Guideline Document,[footnoteRef:59] in lieu of which Prednisolone was administered under his directions.[footnoteRef:60] Furthermore, the 2nd defendant even after diagnosing the disease as TEN still continued with the same medication.[footnoteRef:61] [58: Moot Court Problem, 6.] [59: Id., 5.] [60: Id., 6.] [61: Id., 7.]

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.[footnoteRef:62] There are certain accepted standards and the act of the medical professional should be in consonance with such standards[footnoteRef:63]. [62: See Bolam, (1957) 1 W.L.R. 582.] [63: Whitehouse v. Jordan, (1981) 1 All E.R. 267.]

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.[footnoteRef:64] 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.[footnoteRef:65] Thus, the physician should not take the patient on an experimental basis and an analysis with respect to the reference needs to be made quickly.[footnoteRef:66] [64: Williams v. Health America 41 Ohio App. 3d 245 (1987); Jackson v Power 743 P.2d 1376 (Alaska 1987).] [65: Kuhl v. Lincoln Nat'l Health Plan of Kansas City, Inc., 999 F. 2d 298 (8th Cir. 1993).] [66: Fox v. Health Net, Riverside Sup. Ct. Case No. 219692 (1993).]

35. Specialists concentrate on specific types of illnesses and problems that affect specific tissues and organ systems in our body.[footnoteRef:67] 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.[footnoteRef:68] There are no others who can provide care of an equal quality to that of dermatologists,[footnoteRef:69] in terms of diagnosing and treating skin lesions.[footnoteRef:70] [67: The Road to Becoming a Doctor, (Oct 6, 2014, 9:20 AM), http://www.aamc.org/download/68806/data/road-doctor.pdf.] [68: Royal College of Physicians: Dermatology, (Oct 23, 2014, 6 PM), https://www.rcplondon.ac.uk/sites.default/files/dermatology.pdf.] [69: Id.] [70: Luigi Naldi, The field and its boundaries, in the Evidence Based Dermatology 3 (Hywel Williams et al. eds., 2014).]

36. Unless the general practitioner has had special training in dermatology he should not assume responsibility for the treatment of such conditions.[footnoteRef:71] Moreover, a timely referral needs to be made to the specialist.[footnoteRef:72] 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.[footnoteRef:73] [71: R. Schaffer, Dermatology in General Practice, 74 S.A. Medical Journal 137, 139 (1958).] [72: Id.] [73: Bennett v. Coatbridge Health Centre, [2011] C.S.O.H. 9 (Scot.); Pappas v. Asbel, 675 A.2d 711, 713 (Pa. 1996).]

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 1st defendant was negligent due to delayed and untimely referral.(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.[footnoteRef:74] Symphonatic Treatment and antibacterial policy are other aspects of supportive treatment that need to be adhered to.[footnoteRef:75] 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.[footnoteRef:76] [74: 2 Lowell A. Goldsmith et al., supra note 44, at 651; Malay Kumar Ganguly, supra note 42.] [75: Prof. J.E. Revuz & J.C. Rojeau,supranote 43.] [76: Gerard Pierard, Treatise on TEN (cited in Malay Kumar Ganguly, supra note 42)]

39. Artificial ventiliation also needs to be provided in certain cases.[footnoteRef:77] Conjunctivital involvement also becomes a major problem. Thus eye care also constituted an important element of the supportive care.[footnoteRef:78] 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.[footnoteRef:79] Thus, supportive case becomes an essential part of the therapeutic approach for the prevention of TEN.[footnoteRef:80] [77: Malay Kumar Ganguly, supra note 42.] [78: Id.] [79: Id.] [80: J.C. Roujeau and R.S. Stern, Severe Adverse Cutaneous Reactions to Drugs, 331 N. Engl. J. Med.1272, 1280 (1994).]

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 2nd 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.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.[footnoteRef:81] The negligence of the medical professionals needs to be the cause of the damage that has accrued to the patient.[footnoteRef:82]The 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.[footnoteRef:83] [81: Ratanlal and Dhirajlal, The Law of Torts 184 (G.P. Singh eds., 26th ed. 2013).] [82: Bernett v. Chelsea and Kensington Hospital Management Committee, (1986) 1 All E.R. 1086.] [83: Robinson v. The Post Office, (1974) 2 All E.R. 737.]

42. The defendants would in any casebe liable, if their wrongful act has resulted in materially contributing to the damage.[footnoteRef:84] The fact that other factors were also present would not discharge the defendants of their liability.[footnoteRef:85] The damages should, however, be such that a reasonable man could have foreseen them.[footnoteRef:86] [84: Ratanlal and Dhirajlal, supra note80, at 185.] [85: Id.] [86: Smith v. The London and S.W. Railway Company, (1870-71) L.R. 6 C.P. 14.]

43. TEN is a serious adverse skin reaction that can be life threatening.[footnoteRef:87] 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. [87: Alan D. Widgerow, Toxic epidermal necrolysis management issues and treatment options, 1Int. J. Burnsand Trauma42, 47 (2011).]

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.[footnoteRef:88] These contracts entail standardization of the package offered to customers, in much the same way, as is standardization of a product.[footnoteRef:89] Due to the commercial nature of the most of these contracts, less attention might be paid to issues of contractual fairness.[footnoteRef:90] [88: H.B. Sales, Standard Form Contracts, 16 (3) The Modern Law Review318, 328 (1953).] [89: Mark R. Patterson, Standardization of Standard Form Contracts, 52 (2) William and Mary Law Review 328 (2010).] [90: Id.]

46. There might be certain conditions in the standard form contracts which if put into effect, would negate the main contractual duty.[footnoteRef:91] Such contracts, in consequence, become unenforceable, as a protection needs to be provided against unreasonable consequences of wide and sweeping exemption clauses.[footnoteRef:92] Moreover, every contract contains a core or certain fundamental provisions,[footnoteRef:93]which if any party fails to honor, will be held to be guilty of a breach of contract irrespective of the fact that an exempting clause has been inserted purporting to protect that party.[footnoteRef:94] [91: Alexander v. Railway Executive, [1951] 2 All E.R. 442.] [92: Spurling Ltd. v. Bradshaw, [1956] 1 W.L.R. 461.] [93: B.V. Nagaraju v. Oriental Insurance Co. Ltd, (1996) 4 S.C.C. 647.] [94: Id.; Smeaton Hanscombe v. Sassoon I.Setty, (1953) 1 W.L.R. 1468.]

47. Fundamental breach protects the interest of the weaker party in the contract.[footnoteRef:95] 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.[footnoteRef:96] [95: Shivraj Vasant Bhagwat v. Shevanta D. Indulkar, 1997 A.C.J. 1014.] [96: 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.).]

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.[footnoteRef:97] 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.[footnoteRef:98] [97: Robert A. Seligson, Contractual Exemption for liability from negligence, 44 (1) California Law Review 121, 128 (1956).] [98: Prosser et al., Torts 478 (Victor E. Schwartz et al. eds., 12 ed. 1955).]

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.[footnoteRef:99] [99: White v. John Warwick & Co Ltd, [1953] 2 All ER 1021.]

51. A medical professional owes a reasonable duty of care to the patient while carrying out the treatment of the patient.[footnoteRef:100] 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. [100: See Jacob Mathew, (2005) 6 S.C.C. 1.]

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.[footnoteRef:101] Any clause that is contrary to the public policy would be unenforceable as against the contracting party.[footnoteRef:102] The protection against abridgment of public policy is to discourage negligence by inflicting damages upon the wrongdoers.[footnoteRef:103] Moreover, it also protects the consumers of goods and services from harsh contracts being enforced upon them.[footnoteRef:104] [101: California Powder Works v. Atlantic &Pacific R.R. Co., 113 Ca. 329, 336, 45 Pac.] [102: M.Siddalingappa v. T.Nataraj, A.I.R. 1970 Kant.154;R.S.Deebo v. M.V.Hindlekar, A.I.R. 1995 Bom. 68.] [103: Bisso v. Inland Waterways Corporation, 349 U.S. 85 (1955).] [104: Id.]

53. Public policy is a broad term allowing the Courts to refuse the enforcement of a contract on the considerations of public interest.[footnoteRef:105] The Court in pursuance of this might relieve a party of the duty placed on it through an exemption clause of a contract.[footnoteRef:106] 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.[footnoteRef:107] [105: Thomson-CSF v. National Airport Authority of India, A.I.R. 1993 Del. 252.] [106: Gherulal v. Mahadeodas Maiya, A.I.R. 1959 S.C. 781.] [107: Rattan Chand Hira Chand v. Askar Nawaz Jung, (1991) 3 S.C.C. 67.]

54. The Indian Contract Act 1872 explicitly prohibits the enforcement of such agreements.[footnoteRef:108]Any consideration or object that is opposed to public policy is prohibited by it.[footnoteRef:109] Thus, an unconscionable contract would be prevented from being enforced in the interests of the public.[footnoteRef:110] [108: Indian Contracts Act 1872, No. 9 of 1872, 21.] [109: Id.] [110: 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).]

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.[footnoteRef:111] Thus contracting out of such duty would be against public policy and would render the agreement unconscionable. [111: See Jacob Mathew, (2005) 6 S.C.C. 1, See Bolam, (1957) 2 All E.R. 118.]

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.[footnoteRef:112] The party in the superior position might prevail upon the other party and induce the other party to enter into an unfair agreement.[footnoteRef:113] Undue influence constraints free agency, restricts the power of resistance and brings about the submission of one party before the other.[footnoteRef:114] [112: Indian Contracts Act 1872, supra note 107, 16.] [113: Akshoy Kumar Patil v. New India Assurance Co., A.I.R. 2007 Del. 136.] [114: Mahboob Khan v. Hakim Abdul Rahim, A.I.R. 1964 Raj. 250.]

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.[footnoteRef:115]Since, 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,[footnoteRef:116] and the relationship of a doctor and a patient is clearly that of trust and confidence, wherein the patient puts his health and life in the doctors hands,[footnoteRef:117] it is clear that doctors exercise influence over the patients. [115: Devki Nandan v. Gokli Bai, (1886) 7 Punj. L.R. 325.] [116: 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).] [117: Sidaway v. Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital, [1985] A.C. (H.L.) 871 (appeal taken from Eng.).]

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.

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.[footnoteRef:118] The claimants or the deceaseds negligence should contribute in some degree to the injury or death of the deceased.[footnoteRef:119]The damages in such cases would get apportioned as per the contribution of negligence by both the parties.[footnoteRef:120] [118: Municipal Corporation of Greater Bombay v. Laxman Iyer, (2003) 8 S.C.C. 731.] [119: S Parks v. Edward Ash Ltd., (1943) 1 K.B. 223 at 230.] [120: 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.]

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.[footnoteRef:121] The question, thus, in all cases is not as to who had the last opportunity of avoiding the mischief, but whose act caused the wrong.[footnoteRef:122] The act of the plaintiff needs to make a substantial contribution to the damage suffered by the plaintiff.[footnoteRef:123] [121: Id.] [122: Boy Andrews v. St. Roguvald, (1947) 2 All E.R.(H.L.) 350 (appeal taken from Scot.).] [123: Id.]

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.[footnoteRef:124] [124: Ratanlal and Dhirajlal, supra note 80, at 595.]

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.[footnoteRef:125] [125: Chaplin v. Hawes, (1828) 3 C. & P. 554.]

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

V. That There can be No Bar on the Claimant to Initiate a 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.[footnoteRef:126] While substance is broadly a matter of right,[footnoteRef:127] procedure is broadly a matter of remedy[footnoteRef:128] in such cases.[footnoteRef:129]Characterization of an issue on the basis of Indian conflict of rules[footnoteRef:130] is crucial for the forum deciding the case so as to ascertain the governing law.[footnoteRef:131] [126: 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.] [127: WW Cook, Substance and Procedure in the Conflict of Laws, 42 Yale L.J. 333, 334 (1933).] [128: Id.] [129: Janeen M. Carruthers, supra note 125.] [130: 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.] [131: Huber 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).]

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 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.[footnoteRef:132] [132: 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.).]

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.[footnoteRef:133] [133: Id.,at 394.]

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.[footnoteRef:134] [134: Mostyn v. Fabrigas, 1 Cowp. 161.]

73. Therefore, the common law recognizes that difference or differences in the recoverable heads of damage will distinguish one cause of action from another.[footnoteRef:135] [135: See Chaplin, [1971] A.C. 356 (H.L.) at 392, 394G-395B; Kohnke v. Karger [1951] 2 K.B. 670.]

74. A similar question arose in the case of Black v. Yates,[footnoteRef:136] where the plaintiff widow sought to secure damages under the head of loss of dependency from an English Court on the 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. [136: [1992] Q.B.526.]

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 bereavement[footnoteRef:137]. 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.[footnoteRef:138] [137: Fatal Accidents Act, 1976, c. 30, 1A (Eng.).] [138: 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.).]

76. Therefore, if the Indian law does not recognize this head of damage by applying its own substantive law,[footnoteRef:139] then, in such cases a right, not only remedy, of the claimant would be curtailed. [139: Dr. Balram Prasad v. Dr. Kunal Saha and Ors.,(2014) 1 S.C.C. 384.]

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.[footnoteRef:140] [140: Civil Jurisdiction and Judgments Act, 1982, c. 27, 34 (Eng.); 1 Dicey et al., supra note, at p. 584.]

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.[footnoteRef:141] [141: UNIDROIT, supra note 6, art. 28.]

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.[footnoteRef:142] [142: UNIDROIT Principles of Transnational Civil Procedure (2004), Travaux Prparatoires, Study LXXVI 1999 Doc. 3 at 22.]

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.[footnoteRef:143] 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.[footnoteRef:144] [143: Australian Commercial Research and Development Ltd. v. A.N.Z. McCaughan Merchant Bank Ltd., [1989] 3 All E.R. 65.] [144: UNIDROIT Principles of Transnational Civil Procedure (2004), Travaux Prparatoires, Study LXXVI 1999 Doc. 1at 14; Doc. 3 at 23.]

82. Therefore, the UNIDROIT Principles to which both India and UK are signatories,[footnoteRef:145] 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.[footnoteRef:146] [145: Key Assumption (a) to the Moot Court Problem.] [146: UNIDROIT, supra note 6, art. 2.6.]

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,[footnoteRef:147] and Fatal Accidents Act 1855[footnoteRef:148]. 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.[footnoteRef:149] [147: Legal Representatives Suits Act 1855, Act, No.12 of 1855, Statement of Objects and Reasons [hereinafter Legal Representatives Act].] [148: Fatal Accidents Act 1855, No.12 of 1855, Statement of Objects and Reasons [hereinafter Fatal Accidents Act].] [149: Legal Representatives Act, supra note 146, 1; Fatal Accidents Act,supranote 147, 1A.]

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.[footnoteRef:150] [150: 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.).]

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);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.[footnoteRef:151]For the purposes of assessing damages to the dependents, it has been held that the income of the deceased should be taken into account.[footnoteRef:152] [151: Legal Representatives Act, supra note 146, 1 r/w Fatal Accidents Act, supra note 147, 1A; Ratanlal and Dhirajlal, supra note80, at 113.] [152: National Insurance Co. Ltd. v. Indira Srivastava, (2008) 2 S.C.C. 763.]

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,[footnoteRef:153] 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+.[footnoteRef:154] [153: Key Assumption (b) to the Moot Court Problem.] [154: See Dr. Balram Prasad, (2014) 1 S.C.C. 384.]

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.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,[footnoteRef:155] and the costs incurred in the litigation including the lawyer fees.[footnoteRef:156] [155: Tapas Kumar Koley, Medical Negligence and the Law in India: Duties, Responsibilities, Rights98 (1stedn. 2010).] [156: See Dr. Balram Prasad, (2014) 1 S.C.C. 384.]

B. Entitlement to Recover Non- Pecuniary Damages.92. Non- pecuniary damages are those damages, which are capable of being assessed by arithmetical calculations.[footnoteRef:157]The 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). [157: 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..]

i. Pain and Suffering of the Deceased.93. The abolition of the maxim action personalis moritur cum persona, by the Legal Representatives Suit Act 1855[footnoteRef:158] and Fatal Accidents Act 1855[footnoteRef:159] allows for damages suffered by the deceased before his death under the heads of loss of earnings, pain and suffering.[footnoteRef:160] Duration and intensity of pain and suffering are taken into consideration while awarding damages under this head.[footnoteRef:161] [158: Legal Representatives Suits Act 1855;Ratanlal and Dhirajlal, supra note 80, at 132.] [159: Fatal Accidents Act 1855, No.12 of 1855.] [160: Koley, supra note 154, at 94-5.] [161: See Dr. Balram Prasad, (2014) 1 S.C.C. 384.]

94. In the present case, the horrific impact of TEN resulting in the detachment of skin,[footnoteRef:162] further aggravated with the increased vulnerability of sepsis due to depleting immunity as a consequence of administration of alarming dosage of anti-allergy steroids,[footnoteRef:163] has caused tremendous pain and shock to the deceased. [162: Moot Court Problem, 7.] [163: William 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).]

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.[footnoteRef:164] [164: 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).]

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.[footnoteRef:165]Therefore, 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.[footnoteRef:166] [165: See 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.] [166: See Rajesh and Ors., 2013 (9) S.C.C.54 (citedin See Dr. Balram Prasad, (2014) 1 S.C.C. 384).]

iii. Mental and Emotional Distress of the Claimant.97. In England, bereavement damages[footnoteRef:167] 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,[footnoteRef:168]and an expression on the part of society of the gravity with which it regards the loss of a human life.[footnoteRef:169] [167: Fatal Accidents Act, 1976, c. 30, 1A (Eng.)] [168: 428 Parl. Deb, H.C. (1982) 1294 (U.K.).] [169: 428 Parl. Deb, H.C. (1982) 41-2 (U.K.); 148 Parl. Deb, H.C. (1989) 544 (U.K.).]

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 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.[footnoteRef:170] [170: Moot Court Problem, 7.]

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.[footnoteRef:171] [171: Winfield & Jolowicz, Tort1230 (Rogers ed., 18thedn., 2010).]

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.[footnoteRef:172]It is also recognized that the patients, irrespective of their social, cultural and economic background have a Human Right to be treated with dignity.[footnoteRef:173] [172: 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).] [173: 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).]

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 1stdefendant was in clear violation of the manufacturers warning and recommendation, which no doctor has to right to do.[footnoteRef:174] [174: Moot Court Problem, 3;See Sukumar Mukherjee and Baidyanath Halder,(2004) I.L.R. 1 Cal. 332.]

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.

Pleadings

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