1

BEFORE

THE HON’BLE DISTRICT COURT AT GORAKHPUR, U.P.

DISPUTE RELATING TO

NEGLIGENCE AND DEFAMATION

In the matter of

MR. DEV PRAKASH...............................................................................PLAINTIFF

V.

Dr. S.C. TRIPATHI AND ORS. ………………………………….......DEFENDANT

NAME – ANUSHKA PARASHAR

SECTION - C
ROLL NO. - 194250
MOB. NO. - 8279789881

MEMORIAL FOR PLAINTIFF

MR. DEV PRAKASH
 2

TABLE OF CONTENTS

LIST OF ABBREVIATIONS………………………………………………………………3

INDEX OF AUTHORITIES……………………………………………………………….4

STATEMENT OF JURISDICTION………………………………………………………7

STATEMENT OF FACTS…………………………………………………………………8

STATEMENT OF ISSUES………………………………………………………………..11

SUMMARY OF PLEADINGS…………………………………………………………....12

DETAILED PLEADINGS…………………………………………………………..…….13

ISSUE 1: WHETHER THE DEFENDANT IS LIABLE FOR NEGLIGENCE AND THE

PLAINTIFF ENTITLED TO DAMAGES?

(A): The defendant owed a duty of care to the plaintiff……………………………………13

(B): The defendant made a breach of the duty……………………………………………..15

(C): The plaintiff suffered a damage as a consequence thereof……………………………17

ISSUE 2: WHETHER THE PLAINTIFF IS LIABLE FOR DEFEMATION?

(A): The statement is a matter of truth……………………………………………………..19

(B): The statement made is a fair comment………………………………………………..21

ISSUE 3: WHETHER THE HOSPITAL IS LIABLE FOR THE ACT OF ITS

EMPLOYEE?

(A): The hospital have a duty to check and observe strictly current practices, paramedical and
other staff…………………………………………………………………………………..23

PRAYER………………………………………………………………………………….24

MEMORIAL FOR PLAINTIFF TABLE OF CONTENTS

 3

LIST OF ABBREVIATIONS

S.NO. ABBREVIATION FULL FORM

1. & And
2. i.e. That is
3. AIR All India Report
4. APL Albec Pharmaceuticals Ltd.
5. ANR. Another
6. CPC Civil Procedure Code
7. Govt. Government
8. HON’BLE Honorable
9. JE Japanese Encephalitis
10. LTD. Limited
11. LCPL Life Cure Pharmaceuticals Ltd.
12. NO. Number
13. ORS. Others
14. S/O Son Of
15. SCC Supreme Court Cases
16. SEP. September
17. SC Supreme Court
18. SCR Supreme Court Report
19. V. Versus
20. VOL. Volume
21. W/O Wife of
22. WWW. World Wide Web

MEMORIAL FOR PLAINTIFF LIST OF ABBREVIATIONS

 4

INDEX OF AUTHORITIES

A) STATUTES REFERRED
 CODE OF CIVIL PROCEDURE, 1908.
B) CASES REFERRED
 INDIAN CASES

S. NO. NAME OF THE CASES CITATION PAGE NO.

1. Achutrao Haribhau Khodwa and Ors. V. State (1996) 2 SCR 23
of Maharashtra and Ors. 881
2. Balasubramania V. Rajagopalchariar AIR 1944 Mad 20
484:46 Cr LJ 71
3. Dainik Bhaskar and Anr. V. Madhusudan AIR 1991 MP 19
Bhaskar and Anr. 162
4. Dr. S.K. Jain V. Sahveer Singh 2012 (3) CPR 16
179 (NC)
5. Dr. Vinubhai J. Patel and Anr. V. Thakkar 2012 (2) CPR 15
Kalpesh and Ors. 400 (NC).
6. Jacob Mathew V. State of Punjab and Anr. (2005) 6 SCC 1 14
7. Kishore Lal V. Chairman, ESI Corpn. (2007) 4 SCC 18
579:AIR 2007
SC 819
8. Laxman Balkrishna Joshi V. Trimbak Bapu (1969) SCR 1 15
Godbole and Anr. 206
9. Martin F. D’Souza V. Mohd. Ishfaq (2009) 3 SCC 1 23
10. P. Narasinkha Rao V. Gundaverapu AIR 1990 AP 14
Jyayprakashan 207
11. Poonam Verma V. Ashwin Patel (1996) 4 SCC 13
332
12. Savita Garg V. Director, National Heart (2004) 8 SCC 56 22
Institute

MEMORIAL FOR PLAINTIFF INDEX OF AUTHORITIES

 5

13. Syad Akbar V. State of Karnataka (1980) 1 SCC 30 18

14. Vishan Sarup V. Nardeo Shastri and Anr. AIR 1965 ALL 20
439, 1965 Cr LJ
334
15. W.S. Irwin V. D.F. Reid AIR 1921 Cal 20
282:63

 FOREIGN CASES
S. NO. NAME OF THE CASES CITATION PAGE NO.
16. Branson V. Bower (2002) 2 WLR 20
452
17. Cassidy V. Ministry of Health (1951) 2 KB 343 22
18. Clarke V. Taylor (1836) 2 Bing 19
654
19. Christile V. Robertson (1899) SLR 21
36_899
20. Cox V. Feeney (1863) 4 F&F 13 21
21. Donoghue V. Stevenson (1932) UKHL 13
100
22. Eckersley V. Binnie (1998) 18 CLR 1 16
23. Gold V. Essex county council, (1942) 2 KB 293 22
24. Gill V. General Iron Screw Colliery Co. (1886) LR 1 CP 14
61 2
25. J.B. Jeyaretnam V. Goh Chok Tong (1985) 1 MLJ 21
334
26. London Artists Ltd. V. Littler (1968) 2 QB 375 20
27. McPherson V. Daniels (1829) 10 B&C 19
263
28. Slim V. Daily Telegraph Ltd. (1968) 2 QB 157 20

MEMORIAL FOR PLAINTIFF INDEX OF AUTHORITIES

 6

29. Silkin V. Beaverbrook Newspapers Ltd. (1958) 2 All E.R. 20-21

516
30. Strongways-Lesmere V. Clayton (1936) 2 KB 11 22
31. Sutherland V. Stopes (1925) AC 78-81 19

C) BOOKS REFERRED
1. Dr. R. K. Bangia’s, Law of TORTS
2. RATANLAL & DHIRAJLAL, THE LAW OF TORTS (26th edition 2010)
3. Law of Torts, P.S.A. Pillai

D) ELECTRONIC SOURCES
1. http://www.supremecourtonline.com/
2. https://www.indiankanoon.org/

3. http://www.legalservicesindia.com

MEMORIAL FOR PLAINTIFF INDEX OF AUTHORITIES

 7

STATEMENT OF JURISDICTION

The counsel on behalf of the plaintiff humbly submits the memorandum of the plaint under
section 191 of Civil Procedure Code, 1908 to the Hon’ble District Court of Judicature at
Gorakhpur. The plaintiff submits that the Hon’ble Court has complete jurisdiction over the
matter.

1
SUITS FOR COMPENSATION FOR WRONGS TO PERSON OR MOVABLES- Where a suit is for
compensation for wrong done to the person or to movable property, if the wrong was done within the local limits
of the jurisdiction of one court and the defendant resides, or carries or business, or personally work for gain, within
the local limits of the jurisdiction of another court, the suit may be instituted at the option of plaintiff in either of
the said courts.
 8

STATEMENT OF FACTS

BACKGROUND

1. Albec Pharmaceutical Ltd. (APL) is a giant multinational company.

 It is known for its brand value and research.
 Its registered office is in Washington and 4 research laboratory situated in New York,
London, Tokyo and Singapore.
 It invented a new medicine Minocycline in June 2010 which is a broad-spectrum
tetracycline antibiotic with a chemical composition of alpha-(amino-hydroxy-
methylidene).
 Minocycline is used for a special kind of brain fever Japanese Encephalitis (JE).
 JE is mostly found in African and South Asian countries including India.
 Commercial name of Minocycline was B-Fev 10 and it was in injection form.
 APL applied for patent and trade mark protection of B-Fev 10 in the month of July
2010 and trade mark was registered in the month of Sep. 2010.
2. Life Cure Pharmaceuticals Ltd. (LCPL) made a generic version of B-Fev 10
injection and named it as B-Feu 10.
 B-Feu 10 cost was one-tenth of B-Fev 10.
 The efficiency of B-Feu 10 was 1.5% less than the B-Fev 10.
 One precautionary procedure was must to be followed before administration of B-Feu
10 i.e. to inject 0.5 ml in subcutaneous layer for 30 minutes as allergic test for
this injection otherwise in some cases, it may be lethal.
 B-Feu 10 due to its cheap price and approx. efficiency engulfed 75% market of B-
Fev 10.
 Most of the medical stores were keeping both.
3. Master Rahul, 6 years old, is a son of Mr. Dev Prakash is suffering from JE and
admitted in Gov. Hospital of Gorakhpur, U.P.
4. Most of the medical and para-medical staff of the hospital were appointed on contractual
basis by the Gov. of U.P.

MEMORIAL FOR PLAINTIFF STATEMENT OF FACTS

 9

5. Dr. S.C. Tripathi was unit in-charge of Japanese Encephalitis.

 He was also appointed on a contract for 5 years.
 Ms. Renuka w/o Dr. Tripathi is pursuing B.Sc. (Nursing) in a private college.
 She used to come hospital to assist her husband and to get training which, a complete
unauthorized act.
 Facts was known to hospital authorities but no officers took any action due to Dr.
Tripathi political influence.

6. Rahul was admitted in Dr. Tripathi’s unit and he prescribed in his prescriptions to
purchase a set of B-Fev 10 injections.
 Mr. Dev Prakash went to ‘Shankar Medical Store’ to purchase the said injection.
 Mr. Anand Mishra keeper of store after going through prescription provided B-Feu
10 in place of B-Fev 10.
 Mr. Dev Prakash verified injection name with the prescription but didn’t find any
difference.
 He gave the set of B-Feu 10 injection to Dr. Tripathi.
DISPUTE AND THE SUIT
7. Dr. Tripathi had an emergency call in the emergency ward of the hospital.
 He gave the prescription and injection to his wife and said to administer the injection
to Rahul.
 Ms. Renuka saw only prescription and believing that injection is B-Fev 10 directly
injected it to Rahul’s body.
8. Rahul’s body reacted very fast against the administered injection which damaged
the cranial nerve III, IV and VII and resulted into-
 Permanent blindness.
 Upper left limb paralysis.
9. This incident agitated the relatives of patient against Dr. Tripathi and hospital
authorities.
 The staff used iron rods to resist and evict them, which gave grievous hurt to some.

MEMORIAL FOR PLAINTIFF STATEMENT OF FACTS

 10

10. A Local daily ‘ GORAKHPUR VOICE’ published this incident in the newspaper
and quoted the Master Rahul parents in headings and full statement as-
 “Hospital under medical mafia don Mr. Tripathi”.
 “The Gov. Hospital is under mafia raj of Dr. S.C. Tripathi. He is running parallel
administration in the hospital due to his political influence. His wife Renuka is
assisting in all these things. This type of doctor is shame on the name of humanity.
His act is like a butcher”.
11. After this incident and news Dr. Tripathi was suspended and departmental inquiry was
initiated which resulted in favour of him.
12. Master Rahul parents filed a civil case against Dr. Tripathi, his wife and the hospital.
13. Dr. Tripathi filed a civil suit of defamation against Master Rahul parents.

MEMORIAL FOR PALINTIFF STATEMENT OF FACTS

 11

STATEMENT OF ISSUES

ISSUE 1: WHETHER THE DEFENDANT IS LIABLE FOR NEGLIGENCE AND THE

PLAINTIFF ENTITLED TO DAMAGES?

(A): The defendant owed a duty of care to the plaintiff.

(B): The defendant made a breach of the duty.

(C): The plaintiff suffered a damage as a consequence thereof.

ISSUE 2: WHETHER THE PLAINTIFF IS LIABLE FOR DEFAMATION?

(A): The statement is a matter of truth.

(B): The statement made is a fair comment.

ISSUE 3: WHETHER THE HOSPITAL IS LIABLE FOR THE ACT OF ITS EMPLOYEE?

(A): The hospital have a duty to check and observe strictly current practices, paramedical and
other staff.

MEMORIAL FOR PLAINTIFF STATEMENT OF ISSUES

 12

SUMMARY OF PLEADINGS

ISSUE 1: WHETHER THE DEFENDANT IS LIABLE FOR NEGLIGENCE AND THE

PLAINTIFF ENTITLED TO DAMAGES?

The counsel on behalf of the plaintiff contends that the defendant is liable for negligence and
therefore the plaintiff is entitled to damages. The defendant owed a duty of care to the plaintiff
which was breached as defendant failed to take reasonable care towards the duty and the
plaintiff suffered damages consequently.

ISSUE 2: WHETHER THE PLAINTIFF IS LIABLE FOR DEFAMATION?

It is humbly submitted before this Hon’ble court that the statement made by the patients are
not defamatory in nature as the statement is a matter of truth which was also a fair comment.
The statement made was a fair criticism which was made bona fide and therefore does not
amount to defamation.

ISSUE 3: WHETHER THE HOSPITAL IS LIABLE FOR THE ACT OF ITS

EMPLOYEE?

It is humbly submitted before this Hon’ble court that the hospital authorities are liable for the
negligence of their professional staff. It is said, itself that hospital authority owes a duty to the
patients which can not be delegated and the authority is liable both primarily and vicariously
for the negligence of its staff.

MEMORIAL FOR PLAINTIFF SUMMARY OF PLEADINGS

 13

DETAILED PLEADINGS

1. WHETHER THE DEFENDANT IS LIABLE FOR NEGLIGENCE AND THE

PLAINTIFF ENTITLED TO DAMAGES?

The counsel humbly submits to the Hon’ble court that the defendant is liable for negligence
and therefore the plaintiff is entitled to damages. In Poonam Verma v. Ashwin Patel2, it has
been reiterated that negligence involves that- (A): The defendant was under a duty to take
reasonable care towards the plaintiff to avoid the damage complained of, (B): There was a
breach of duty on the part of the defendant; (C): The breach of duty was the legal cause of the
damage complained of.

(A): The Defendant owed a Duty of care to the Plaintiff.

1. It is humbly submitted to this Hon’ble court that the defendant (Dr. S.C. Tripathi, herein
after referred as defendant no. 1) was unit-in charge of Japanese Encephalitis, where the
plaintiff’s son Master Rahul was admitted. Hence, the defendant no.1 was under a duty to take
reasonable care towards the plaintiff to avoid the damages complained of. 3

2. In R. V. Bateman4 the civil liability of medical men as held is-“If a person holds himself
out as possessing special skill and knowledge, by or on behalf of a patient, he owes a duty to
the patient to use due caution in undertaking the treatment. If he accepts the responsibility and
undertakes the treatment and the patient submits to his direction and treatment accordingly, he
owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering
the treatment”.

3. It has been held by House of Lords in the case of Donoghue V. Stevenson5-

“You must take reasonable care to avoid acts or omissions which you can reasonable foresee
would be likely to injure your neighbor.”

The duty depends upon reasonable foreseeability of the injury to the plaintiff. If at the time of
the act or omission the defendant could reasonably foresee injury to the plaintiff. He owes a

2
AIR 1996 SC 2111.
3
Poonam Verma V. Ashwin Patel and Ors. , AIR 1996 SC 2111.
4
19 Cr App R 8.
5
(1932) UKHL 100.
 14

-duty to prevent that injury and failure to do so makes him liable. It is mentioned in Para 2-
point 4 & 5 of the problem that due to approx. efficiency and cheap price of B-Feu 10. It has
engulfed 75% market of B-Fev 10. So, it becomes imperative on the part of Defendant no. 1
to take extra caution and take all care to avoid the damages.

4. In the case of P. Narasinkha Rao V. Gundaverapu Jyayprakashan6 it was held by Andhra

Pradesh Court that “In case of persons who undertake work requiring special skill must not
only exercise reasonable care but measures up to the standard of proficiency that can be
expected from persons of such professions. Failure to conform to the required standard of care
resulting in material injury is actionable negligence if there is proximate connection between
the defendant’s conduct and the resultant injury.”

5. In Gill V. General Iron Screw Colliery Co.7, negligence is defined as the “absence of such
care as it was the duty of defendant to use”. In the present case – the fact that defendant no. 1
asked defendant (Ms. Renuka, herein after referred as defendant no.2 ) to perform the duty who
was in fact not an authorized person does not divest him of the responsibility and duty he has
towards his patient to see that the duty is performed carefully and not negligently.

6. In Jacob Mathew V. State of Punjab and Anr. 8, it was observed in para 11 that essential
components of negligence as recognized are three: “duty”, “breach” and “resulting damage”.
It is noteworthy that the defendant was under a duty to take care of all and he made a breach of
that duty as result the damages are suffered by the plaintiff.

6
AIR 1990 AP 207.
7
(1886) LR 1 CP 61 2.
8
(2005) 6 SCC 1.
 15

(B) The Defendant made a Breach of the Duty.

7. It is pertinent to note that defendant no. 1 practices a profession which requires due care,
skill, diligence and caution. In Laxman Balkrishna Joshi V. Trimbak Bapu Godbole and
Anr.9, The Court held that a person who holds himself out ready to give medical advice and
treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose.
Such a person when consulted by patient owes him certain duties viz. a duty of care in deciding
whether to undertake a case, a duty of care in deciding what treatment to be given or a duty
of care in administration of that treatment. A breach of any of those duties gives a right
of action for negligence to the patient.

8. The counsel humbly submits to this Hon’ble court that the defendant no. 1 & 2 have failed
to act as a prudent man and failed to establish a standard of care. It is important to mention here
that it was the duty of defendant no. 1 to scrutinize the prescription with the medicine for the
administration of injection in first place and then to administer it. To, the dismay of plaintiff,
he delegated his duty to an unqualified person i.e. defendant no. 2. While, the defendant no. 2
has shown Active Negligence i.e. this kind of negligence happens actually due to lack of
proper training and knowledge 10. This complete act shows that defendants were negligent in
their act and there was a breach of duty owed to the plaintiff. If a man is or hold, out to be,
specially skilled in a particular profession. He will be held liable for negligence, if he fails to
exhibit the care and skill of one ordinarily an expert in that profession11.

9. The happening of the unfortunate incident affords prima facie evidence that it was the result
of want of due care. The very negligence can be proved by the act that the defendant did not
take prior precautionary test before administration of injection namely B-Feu 10. This drug
can not be given without prior allergic test. Thus, it was the total negligence on the part of
defendants and due to which the plaintiff’s son has lost vision of his both eyes and suffered
upper left limb paralysis. In Dr. Vinubhai J. Patel and Anr. V. Thakkar Kalpesh and Ors. 12,
The doctor administered medicine without taking care to rule out adverse reaction and hence,
defendant was found guilty of medical negligence.

9
(1969) SCR (1) 206.
10
Dr. Mahendra K Joshi, A-Z Medical Law 2000 46 (1st ed. Oct. 2nd 2000).
11
The Law of Torts, M.N. Shukla, p.242
12
2012 (2) CPR 400 (NC).
 16

10. Negligence includes omission to take due care and as professional the defendant no. 1 act
in not scrutinizing the prescribed medicine with the prescription is a pure act of negligence. In
case of Dr. S.K. Jain V. Sahveer Singh13, it was observed that Tetracycline injection was
given without doing any test, which caused drug reaction to the complainant. So, it clearly
shows that the petitioner doctor was negligent.

11. The law requires a fair and reasonable standard of care and competence 14. It is pertinent to
note that the patient, in the instant matter plaintiff suffered an irreparable damage i.e. permanent
blindness and upper left limb paralysis because of the negligent act of the defendants. In
Eckersley V. Binnie15, it was observed that a medical practitioner should be alert to the hazards
and risks in any professional task he undertakes to the extent that other ordinarily competent
members of the profession would be alert.

12. In Eckersley V. Binnie, Bingham16 L.J. after reviewing various authorities, summarized
the Bolam's test as: from these general statements it follows that a professional man should
command the corpus of knowledge which forms part of the professional equipment of the
ordinary member of his profession. He should not lag behind other ordinary assiduous and
intelligent members of his profession in knowledge of new advances, discoveries and
developments in the field. He should have such an awareness as an ordinarily competent
practitioner would have.

13. In the concerned case, not scrutinizing the prescription with the medicine and delegating
the duty to an unqualified person shows the lack of due care on the part of defendant no. 1 and
just believing that the medicine is same as the prescribed one shows the lack of awareness by
defendant no. 2

Hence, the plaintiff humbly submits that he has established that there was negligence on part
of the defendants.

13
2012 (3) CPR 179 (NC).
14
Charlesworth and Percy on Negligence (7th ed.), The Common Law Library no. 6, p.540.
15
(1998) 18 CLR 1.
16
Supra 15.
 17

(C): The Plaintiff suffered a damage as a consequence thereof.

14. It is submitted before this Hon’ble Court that not merely the defendants were negligent but
also there was actual damage and the damage resulted to the plaintiff, in consequence of the
negligent act was the direct and proximate cause of the damage. As, mentioned in Para 8 of the
stated facts that due to wrongful administration of injection Master Rahul suffered permanent
blindness and upper left limb paralysis. In Syad Akbar V. State of Karnataka17, the SC pointed
out that a mere preponderance of probability is sufficient and the defendant is not necessarily
entitled to the benefit of every reasonable doubt.

15. It is important to mention here that the cause of action for negligence arose when the
damage occurred to the plaintiff on account of breach of duty by the defendant 18. On account
of negligence on part of defendant the plaintiff son’s son has suffered an irreversible damage
at such a tender age. Also, the defendant is liable to the plaintiff for the mental agony, pain and
trauma suffered by him and his family. The whole life of the plaintiff’s is ruined because of the
negligent act of defendant as they failed to discharge their duty of taking reasonable care,
diligence.

16. There stands a direct relation between the negligent conduct of the defendant and the injury
caused consequently to the plaintiff. The plaintiff’s son Master Rahul aged about 6 years is
now totally dependent on his parents for day to day life. Because of the reckless and negligence
on the part of defendants, his bright future is marred permanently. The permanent blindness
and upper left limb paralysis suffered by him due to the damage of cranial nerve III, IV and
VII on account of the negligence of defendants has disabled him completely from pursuing any
lucrative avocation. Now, there is no prospect of his getting any gainful employment. For the
rest of his life he needs financial support. The tragedy which struck him at such a tender age in
the form of irreversible damage made his life a permanent nightmare.

17
(1980) 1 SCC 30.
18
Kishore Lal V. Chairman, ESI Corpn. (2007) 4 SCC 579: AIR 2007 SC 819.
 18

17. The counsel on behalf of the plaintiff pleads that the plaintiff has established not only that
the defendants were negligent but also that the defendant’s negligence was the cause of the
unfortunate happening. It is further stated that the facts clearly shows that the defendants had
committed breach of their duty due to which plaintiff had to suffer grave mental harassment,
trauma along with life time pain and suffering.

Hence, the counsel on behalf of the plaintiff humbly request this Hon'ble Court that the
defendants should be held guilty for medical negligence and direct them to pay a sum as the
court may seem fit for the damages incurred.

MEMORENDUM FOR PLAINTIFF DETAILED PLEADINGS

 19

2. WHETHER THE PLAINTIFF IS LIABLE FOR DEFAMATION?

It is humbly submitted before this Hon’ble court that the plaintiff is not liable for defamation
as the defendant has not come to the court with clean hands. The statement made by the plaintiff
are not defamatory in nature as-(A): The statement is a matter of truth; (B) The statement made
was a fair comment.

(A): The statement is a matter of truth

18. The counsel on behalf of the plaintiff contends that the words complained of are in
substance and in fact true. The statement made was – “The Government Hospital is under mafia
raj of Dr. S.C. Tripathi. He is running parallel administration in the hospital due to his political
influence. His wife Renuka is assisting in all these things. This type of doctor is shame on the
name of humanity. His act is like a butcher”. In the case of Dainik Bhaskar V. Madhusudan
Bhaskar19, it was held that it is not necessary to justify every detail of the charge, provided that
the gist of the libel is proved to in substance correct, and that the details, etc., which are not
justified, produce no different effect on the mind of the reader than the actual truth would do.

19. It is noteworthy that the plaintiff has reposed all of his trust and confidence for the treatment
of his child in the defendant which was breached by him. Not only defendant no. 1 was
negligent in not checking the prescription with the medicine. He delegated his duty to an
unqualified person i.e. defendant no.2 which was completely an unauthorized act. A statement
is true in substance if the erroneous details in no way aggravate the defamatory character of the
statement or alter its nature20.

Hence, it is established that the defendant no. 1 was not only negligent. He was misusing his
political influence to do an unauthorized act. These characteristics are certainly not possessed
by a professional which involves ethics and consequently it proves that the imputation is true.
The statement “law will not permit a man to recover damages in respect of an injury to a
character which he does not or ought not to possess” 21 aptly fits on the defendant

19
AIR 1991 MP 162.
20
Clarke V. Taylor, (1836) 2 Bing 654; Sutherland V. Stopes, (1925) AC 78-81.
21
McPherson V. Daniels, (1829) 10 B & C 263.
 20

(B): The statement made was a fair comment

20. The counsel on behalf of plaintiff contends that the statement made by the plaintiff was
mere a ‘fair criticism’ which was out of frustration and agitation as mention in para 9 and 10
of the problem. The plaintiff was agitated by the negligent act of the defendants. The defendant
was negligent in performing his duty which resulted into an irreparable damage suffered by
plaintiff’s child which invites fair criticism. Hence, the plaintiff states that the ‘fair criticism of
plaintiff does not amount to defamation’ as the view expressed is honest 22.

21. As remarked by Lord Denning in Slim V. Daily Telegraph Ltd.23, “He must honestly
express his real view. So long as he does this, he has nothing to fear, even though other people
may read more into it”.

Therefore it is well established before this Hon’ble court that the comment is fair as it is stated
on facts in Para 5 - point 4 & 5. The plaintiff has expressed his opinions honestly, done so upon
facts accurately stated and hence there is hardly any scope of complaint of defamation24.

22. The doctrine of fair comment is based on the hypotheses that the publication in question is
one which, broadly speaking, is true in fact, that the facts stated therein are such as would go
to serve the public servant 25. It is said nothing is libel which is a fair comment on a subject
fairly open to public discussion26. It is the expression that has to be fair27.

23. The matter complained of as defamatory, was an honest expression of opinion made in
good faith and for the good of the public 28. A matter of public interest is a matter which invites
public attention, is of public importance29 or in which public is legitimately concerned 30.A man
has the right to publish, for the purpose of giving the public information that which it is proper
for the public to know31.

22
Silikin V. Beaverbrook Newspapers, (1958) 2 ALL ER 516.
23
(1968) 2 QB 157.
24
Branson V. Bower, (2002) 2 WLR 452.
25
Vishan Sarup V. Nardeo Shastri, AIR 1965 ALL439, 1965 Cr LJ 334.
26
W.S. Irwin V. D.F. Reid, AIR 1921 Cal 282:63 IC 467:48 Cal 304:25 CWN 150.
27
V. Mitter, Law of Defamation and Malicious Prosecution.
28
Balasubramania V. Rajagopalchariar, AIR 1944 Mad 484:46 Cr LJ 71.
29
Supra 23.
30
London Artists, Ltd. V. Littler, (1969) 2 QB 375.
31
Cox V. Feeney, (1863) 4 F&F 13.
 21

24. It is a matter of grave public concern that the profession in which public entrusts its whole
trust must be performed diligently. The defendants have failed miserably in performing their
duty towards the patient. People give their life in the hands of Doctors with a hope and faith
that they will fulfill their duty carefully and certainly it is the subject matter complained of
invites public attention. The comment was made by the plaintiff in good faith so that the public
comes to know the reality and the defendant can be abstained from performing their duty
recklessly. Fair comment is the name given to the right of every citizen to comment on matters
of public interest 32.

25. Hence, the plaintiff had no malicious intention in doing so as the plaintiff communicated
the matter in good faith. The comments made by the plaintiff are based on facts as already
mentioned about the damage suffered by their son Master Rahul at such a tender age of 6 years
due to which they were agitated, they were having mental agony, pain and suffering. Despite
the fact that, hospital staff used iron rods to evacuate them from the premise.

26. Therefore, it is pleaded before this Hon’ble court that the statement made by the plaintiff
was a comment which is a statement of opinion of facts33 (which includes inference of facts)
and the matter alleged to be defamatory is nothing but a fair comment on a matter of public
interest, which a fair minded person can honestly make on the facts proved 34. Any person,
whether he is private individual has a right to hold any view he pleases on a matter of public
concern, and to express the same.

32
Silikin V. Beaverbrook Newspapers, (1958) 2 ALL ER 516.
33
Christile V. Robertson, (1889) 10 New South Wales LR 161.
34
J.B. Jeyaretnam V. Goh Chok Tong, (1985) 1 MLJ 334.

MEMORENDUM FOR PLAINTIFF DETAILED PLEADINGS

 22

3. WHETHER THE HOSPITAL IS LIABLE FOR THE ACT OF ITS

EMPLOYEE?

It is humbly submitted before this Hon’ble Court that Hospital authorities were negligent
having allowed unqualified people as nurse and having entrusted patients to their care. A
hospital authority, it is said, owes a duty to the patients which can not be delegated and the
authority is liable both primarily and vicariously for the negligence of its staff. On this principle
the hospital authority may be held liable for breach of its primary duty when the negligence is
of a person who can not be called a servant of the authority.

(A): The hospital have a duty to check and observe strictly current practices,
paramedical and other staff.

27. The counsel humbly submits before the Hon’ble court that as mentioned in the facts that
the hospital authorities were aware of the fact that defendant no. 2 comes to hospital to assist
her husband and to get training which was completely an unauthorized act, but they did not
take any action towards it due to the political influence of defendant no. 1 shows the negligent
conduct of the authorities. In Savita Garg V. Director, National Heart Institute35, the SC
quoted with approval following proposition from Denning L.J.’s judgement in Cassidy’s
case36, “The hospital authority is liable for negligence of professional men employed by the
authority under contract for service as well as under contract of service. The authority owes a
duty to give proper treatment medical, surgical, nursing and the like and thought it may
delegate the performance of that duty to those who are not its servants, it remains liable
if the duty improperly or inadequately performed by its delegates.

28. In Strongways-Lesmere V. Clayton’37, it was held that it is the duty on the hospital to see
that the nurses who are engaged are duly qualified. It is submitted that according to the view
which prevails after Gold’s case38. The hospital authorities should have been held liable.

35
(2004) 8 SCC 56, P.66: AIR 2004 SC 5088.
36
Cassidy V. Ministry of Health, (1951) 2 KB 341.
37
(1936) 2 KB 11.
38
Gold V. Essex county council, (1942) 2 KB 293.
 23

29. In Achutrao Haribhau Khodwa V. State of Maharashtra and Ors. 39, it was observed that
government hospitals are vicariously liable for the act of its doctors. It was further stated that
gov. is vicarious liable for the act of its employees including the one in running of the hospitals.

30. In Martin F. D’Souza V. Mohd. Ishfaq40, the court laid down the precautions which
doctors/hospitals etc. should have taken, in the following terms-

“(a) Current practices, infrastructure, paramedical and other staff, hygiene and sterility should
be observed strictly.

(b) No prescription should ordinarily be given without actual examination. The tendency to
give prescription over the telephone, except in acute emergency, should be avoided.

(c) A doctor should not merely go by the version of patient regarding his symptom, but should
also make his own analysis including tests and investigations where necessary.

(d) A doctor should not experiment unless necessary and even then he should ordinarily get a
written consent from the patient.

(e) An expert should be consulted in case of any doubt.”

It is humbly submitted that the defendants can not absolve themselves for their act of
negligence. This is a profession which requires due diligence, care, skill which you can not
perform indifferently.

39
(1992) 2 SCC 634.
40
(2009) 3 SCC 1.
 24

PRAYER

Wherefore, in the light of facts stated, the cases cited, issues raised, detailed pleadings and
authorities cited, it is most humbly prayed and implored before the Hon’ble court of Gorakhpur,
that it may be graciously pleased to adjudge and declare that:

 The defendant is liable for negligence and the plaintiff is entitled to damages as
sought.
 The hospital authorities are liable for the act of its employee.
 The plaintiff is not liable for defamation.

Also, pass any other order that the court may deem fit in the favour of plaintiff to meet the
ends of equity, justice and good conscience.

For this act of kindness, the defendant shall be duty bound forever pray.

Place: Gorakhpur, U.P.

Respectfully submitted,

Counsel for plaintiff

MEMORIAL FOR PLAINTIFF PRAYER