Team Code: D1

IN THE HIGH COURT OF DELHI

-In the Matter of-

Under Section 9, 19, 20 of Civil Procedure Code, 1908

BECKER (Petitioner)
v.
HOTEL OBEROI INTERNATIONAL (Defendant)

Written Submissions on the behalf of the Defendants

MEMORIAL ON BEHALF OF THE DEFENDANT

 TABLE OF CONTENTS

INDEX OF AUTHORITIES......................................................................................................3

STATEMENT OF JURISDICTION...........................................................................................4

STATEMENT OF FACTS..........................................................................................................5

STATEMENT OF ISSUES........................................................................................................6

SUMMARY OF ARGUMENTS................................................................................................7

ARGUMENTS ADVANCED....................................................................................................9

ISSUE I: THAT THE DEFENDANTS WERE NOT GUILTY OF NEGLIGENCE TO ANY

EXTENT AND TO ANY EFFECT........................................................................................9

ISSUE II: THAT THE ACCIDENT IN THE SWIMMING POOL OF HOTEL OBEROI
INTERNATIONAL WAS NOT ON ACCOUNT OF ANY TRAP LAID DOWN BY THE
DEFENDANTS....................................................................................................................11

ISSUE III: THAT THERE WAS FAILURE ON PART OF THE PLAINTIFF TO TAKE
REASONABLE CARE OF HIMSELF IN HIS OWN INTEREST AND THE PLAINTIFF
HAD THE LAST OPPORTUNITY TO AVOID THE ACCIDENT....................................12

III (a): That there was any failure on part of the party to take reasonable care of himself in
his own interest.....................................................................................................................12

III (b): That the plaintiff had the last opportunity to avoid the accident..............................13

ISSUE IV: THAT THE SUFFERING OF THE PLAINTIFF WAS THE DIRECT RESULT
OF HIS OWN NEGLIGENCE AND INACTION...............................................................13

ISSUE V: THAT THE INJURY SUFFERED BY THE DECEASED PLAINTIFF ON 13TH

AUGUST, 2012 DID NOT CAUSE HIS DEATH...............................................................14

PRAYER..................................................................................................................................16

MEMORIAL ON BEHALF OF THE DEFENDANT

INDEX OF AUTHORITIES

Cases

Ashdown v. Samuel Williams & Sons Ltd , [1957] 1 Q.B. 459...............................................10

Blyth v. Birmingham Water Works, Co. 11 Exch. 781...............................................................9
Consumer Case No. 401 of 2015.......................................................................................12, 13
Jacob Mathew v. State of Punjab, (2005) 6 S.C.C 1..................................................................9
Krishna Bus Service Ltd v. Smt Mangli and others [1976] 3 S.C.R. 178................................14
Lata Wadhwa and Ors. v. State of Bihar Writ Petition(Civil) 232 of 1991..............................13
Pigney v. Pointers Transport Services Ltd. 1952 (2) All. E.R. 807..........................................14
Ratcliffe v. Mc Connell, [1997] E.W.C.A. Civ 2679...............................................................10
Re Polemis and Furness, Wilthy & Co., [1921] 3 K.B. 560....................................................15
Re: Polemis & Furnace, 1921 (3) K.B. 560.............................................................................14
Schutz v. Blue Dolphin Pools, 123 U.S. 100 [1975]................................................................10
Sudhir Kumar Rana v. Surinder Singh and Ors Civil Appeal No. 3321 of 2008.....................13
White v. Blackmore, [1972] 3 W.L.R. 296...............................................................................12

Books

DR. CHAKRABORTI LAW OF NEGLIGENCE 191-192 (1996)........................................................9

RATANLAL & DHIRAJLAL, LAW OF TORTS 499-501 (22d ed. 1992).........................................10

MEMORIAL ON BEHALF OF THE DEFENDANT

STATEMENT OF JURISDICTION

The defendant submits to the jurisdiction of the Honble High Court of Delhi under section 9, 19, 20
of Civil Procedure Code, 1908.

The present memorandum set forth the facts, contentions and arguments in the present case.

MEMORIAL ON BEHALF OF THE DEFENDANT

STATEMENT OF FACTS

1) Becker, the plaintiff, a Swiss national 30 years old man was a co-pilot in Singapore
Airways. On a flight from Bangkok to New Delhi on 11th August, he landed and was
scheduled to continue his flight to Frankfurt on 14th August, 2012. For the
intervening time, he checked into the Hotel Oberoi International. At 2.00pm of August
13, the plaintiff visited the swimming pool.
2) At about 6.00 pm while diving the plaintiff met with an accident. He had hit his head
on the bottom of the swimming pool. He was taken out bleeding from right ear and
appearing to have paralysed in the arms and the legs He was taken to Holy Family
Hospital, situated nearby, where he remained admitted and under treatment until
August, 21, 2012 on which date he was flown to Germany under medical escort.
3) On 22nd August, 2012 he was admitted for treatment at the orthopaedic Clinic and
Polyclinic of the University of Heidelberg. On 24th March, 2014 he was discharged
from the Clinic.
4) The defendants have denied their liability, that there was no negligence on the part of
the hotel; that it is the plaintiff who was negligent; the plaintiff is entitled to no
damages at all. The plaintiff was in the pool ever since 2.30pm had taken some drinks
and was diving in the pool till the evening He was performing acrobatics repeatedly,
dangerous in tendency, and many times he was warned by the hotel staff not to do
such dangerous acts from the diving board. Diving at a continuous, the plaintiff was
virtually exhausted. There was a notice also at the foot of the diving board reading
"dive at your own risk. The last act performed by the plaintiff was a negres dive a
long and jump for the board his hands over the head with the result that the plaintiff
hit his head on the bottom of the pool. This was the result of the plaintiffs own
negligence.
5) The hotel record would show the drinks having been ordered by the plaintiff and
having been supplied to and consumed by him. However only one voucher slip for
one beer bottle has been produced in court. When the plaintiff was brought out from
the swimming pool one Mrs. Gausmann, Stewardess at fight had given mouth to
mouth respiration to the plaintiff, if at all the plaintiff had consumed any alcohol then
she is the one who would have certainly got smell of it, the defendants cross-
examined at length fail to prove it. The plaintiff has filed a suit of negligence against
defendant on 11.8.2015, for recovery of an amount of Rs 50 lacs by way of damages
with interest.

MEMORIAL ON BEHALF OF THE DEFENDANT

STATEMENT OF ISSUES

1. THAT THE DEFENDANTS WERE NOT GUILTY OF NEGLIGENCE TO ANY

EXTENT AND TO ANY EFFECT
2. THAT THE ACCIDENT IN THE SWIMMING POOL OF HOTEL OBEROI
INTERNATIONAL WAS NOT ON ACCOUNT OF ANY TRAP LAID DOWN BY
THE DEFENDANTS
3. THAT THERE WAS FAILURE ON PART OF THE PLAINTIFF TO TAKE
REASONABLE CARE OF HIMSELF IN HIS OWN INTEREST AND THE
PLAINTIFF HAD THE LAST OPPORTUNITY TO AVOID THE ACCIDENT
4. THAT THE SUFFERING OF THE PLAINTIFF WAS THE DIRECT RESULT OF
HIS OWN NEGLIGENCE AND INACTION
5. THAT THE INJURY SUFFERED BY THE DECEASED PLAINTIFF ON 13TH
AUGUST, 2012 DID NOT CAUSE HIS DEATH

MEMORIAL ON BEHALF OF THE DEFENDANT

SUMMARY OF ARGUMENTS

1. THAT THE DEFENDANTS WERE NOT GUILTY OF NEGLIGENCE TO ANY

EXTENT AND TO ANY EFFECT
It is humbly submitted on behalf of the defendants that there was no negligence on
their part and they had no role to play in the accident and injury caused to the
plaintiff. The injury caused to the plaintiff was due to his own fault and negligence
and the defendants had taken due care of everything and thus were not liable for any
compensation for consequences arising from the injury. The plaintiff was drunk and
exhausted and was taking dangerous risks by diving in an incorrect manner.

2. THAT THE ACCIDENT IN THE SWIMMING POOL OF HOTEL OBEROI

INTERNATIONAL WAS NOT ON ACCOUNT OF ANY TRAP LAID DOWN BY
THE DEFENDANTS
It is humbly submitted on behalf of the defendants that there was no trap in the
circumstances by the hotel and they had no role to play in the accident and injury
caused to the plaintiff. The injury caused to the plaintiff was due to his own fault and
negligence and the defendants had taken due care of everything and thus were not
liable for any compensation for consequences arising from the injury. The plaintiff
was drunk and exhausted and was taking dangerous risks by diving in an incorrect
manner.

3. THAT THERE WAS FAILURE ON PART OF THE PLAINTIFF TO TAKE

REASONABLE CARE OF HIMSELF IN HIS OWN INTEREST AND THE
PLAINTIFF HAD THE LAST OPPORTUNITY TO AVOID THE ACCIDENT
It is humbly submitted that there was no failure on part of the plaintiff to take
reasonable care of himself in his own interest and had the last opportunity to avoid the
accident and thus the defendants were not liable for negligence and did not owe any
compensation to the plaintiff due to the accident. The plaintiff was drunk and
exhausted and was taking dangerous risks by diving in an incorrect manner.

4. THAT THE SUFFERING OF THE PLAINTIFF WAS THE DIRECT RESULT OF

HIS OWN NEGLIGENCE AND INACTION
It is humbly submitted that there was no failure on part of the plaintiff to take
reasonable care of himself in his own interest and had the last opportunity to avoid the
accident and thus the defendants were not liable for negligence and did not owe any

MEMORIAL ON BEHALF OF THE DEFENDANT

 compensation to the plaintiff due to the accident. The plaintiff was drunk and
exhausted and was taking dangerous risks by diving in an incorrect manner.

5. THAT THE INJURY SUFFERED BY THE DECEASED PLAINTIFF ON 13TH

AUGUST, 2012 DID NOT CAUSE HIS DEATH

The counsel humbly submits before the Honble Court that the death of plaintiff is not
directly related with the injury sustained. The counsel submits that the death of
plaintiff took place after two years of injury suffered, and also because of cardiac
arrest which has no collateral and intertwined connection with the bleeding in right
ear and appearance of paralysis in the arms and legs as has taken place in present
case. Further, the argument is backed by the medical theories as well as case laws.

MEMORIAL ON BEHALF OF THE DEFENDANT

ARGUMENTS ADVANCED

ISSUE I: THAT THE DEFENDANTS WERE NOT GUILTY OF NEGLIGENCE TO

ANY EXTENT AND TO ANY EFFECT
It is humbly submitted on behalf of the defendants that there was no negligence on their part
and they had no role to play in the accident and injury caused to the plaintiff. The Supreme
Court of India in Jacob Mathew v. State of Punjab 1 defined Negligence as Negligence
consists in the neglect of the use of ordinary care or skill towards a person to whom the
defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff
has suffered injury to his person or property. In Blyth v Birmingham Water Works Co 2;
ALDERSON, B. defined negligence as, negligence is the omission to do something which a
reasonable man would do, or doing something which a prudent or reasonable man would
not do.

Degree of care is not a phrase with static connotation. Its meaning would depend on given
fact situation- the person who owes a duty to take care, the person whose care is to be taken
and the subject matter by reference to which degree of care is to be determined. The
defendants as owners and managers of the hotel had taken all reasonable care of the plaintiff
as a guest that a prudent person would in these circumstances. The defendants have abided by
the duty of care they owed to the plaintiff and have taken complete measures of the safety and
thus have not committed any negligence and are therefore not responsible for the
consequences arising from the accident and injury caused to the plaintiff.

The phrase rest ipsa loquitur means the thing speaks for itself. Under the doctrine, a plaintiff
establishes a prima facie case of negligence. There must be proper evidence in order to prove
negligence on part of one party3 and in the present case no such evidence has been presented
before the court. Three conditions which must be satisfied to attract applicability are: (i) the
accident must be of a kind which does not ordinarily occur in the absence of someone's
negligence; (ii) it must be caused by an agency or instrumentality within the exclusive control

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

2 Blyth v. Birmingham Water Works, Co. 11 Exch. 781.

3 DR. CHAKRABORTI LAW OF NEGLIGENCE 191-192 (1996).

MEMORIAL ON BEHALF OF THE DEFENDANT

of the defendant; (iii) it must not have been due to any voluntary action or contribution on the
part of the plaintiff.4

In the present case this doctrine will not be applicable because the plaintiff, Mr. Becker was
himself negligent. This can be proved by the following facts: (1) the defendant had consumed
a few drinks before he made the dive in question (2) he was there in the pool since 2:30 P.M.
and had been continuously swimming and was exhausted due to the prolonged exertion (3) he
had been warned by the hotel staff repeatedly not to perform the dangerous acrobatics tricks
from the diving board which he was doing (4) the last act performed by the plaintiff was a
negres dive a long and jump for the board his hands over the head with the result that the
plaintiff hit his head on the bottom of the pool. This was the result of the plaintiffs own
negligence (5) the plaintiff stayed in the hotel on a number of occasions earlier and must have
used the pool and dived in the swimming pool but he too never suffered any accident or
injury.

The counsel places reliance on the defense of Volenti non fit injuria. In Ratcliffe v. Mc
Connell5 [1999] the plaintiff, who was drunk, jumped into a swimming pool marked with
warning signs, suffering serious injuries after hitting the bottom. The Court of Appeal held
that, because of the circumstances (jumping into an obviously shallow pool with warning
signs during the winter), the plaintiff should have known of the risk and, by acting, had
accepted the risk. Mr Ratcliff had admitted that he had been fully aware that the pool was
closed for the winter, that the water level was low .The court therefore held, allowing the
appeal, that Mr Ratcliff had been aware of the risk and had willingly accepted it. Accordingly
Mr McConnell and Mr Jones, in their relevant capacities, owed no duty towards Mr Ratcliff.

In Ashdown v. Samuel Williams & Sons Ltd 6, in which the Court of Appeal held that an
occupier could exclude liability by displaying a notice disclaiming as such, even if the
claimant had not read the notice it was assumed that an appropriate warning notice to
licensees must be effective to exempt occupiers from liability, since it would be a condition of
the exercise of the license. The counsel would like to place reliance on famous case Schutz

4 RATANLAL & DHIRAJLAL, LAW OF TORTS 499-501 (22d ed. 1992).

5 Ratcliffe v. Mc Connell, [1997] E.W.C.A. Civ 2679.

6 Ashdown v. Samuel Williams & Sons Ltd , [1957] 1 Q.B. 459.

MEMORIAL ON BEHALF OF THE DEFENDANT

v. Blue Dolphin Pools7. The first public court case to bring attention to diving board
accidents. It started with the story of a teenager in Virginia who suffered a crippling diving
board accident court held him guilt because he failed to perform basic rules of diving which
includes diving with hands in front.

The defendants had in their capacity taken complete care. Pool was designed in conformity
with the prevalent architectural standard so as to be safe for user. The plaintiff was provided
with safe height and protrusion of the diving board and the depth of water at the plummet
point was maintained at the minimum prescribed level that any one taking a plunge into the
water is not likely to suffer an injury. Reliance is placed on recommendations of NCAA,
which is world known institution dealing specifically with sports like swimming. It suggests
the depth of the water for a three meter diving board to be 10-12 feet which was maintained
by the defendants. There was also a board near the pool and diving board reading dive at
your own risk

Thus it is humbly submitted that the defendants were not negligible and the injury caused to
the plaintiff was due to his own negligence and no case of compensation arises.

ISSUE II: THAT THE ACCIDENT IN THE SWIMMING POOL OF HOTEL OBEROI
INTERNATIONAL WAS NOT ON ACCOUNT OF ANY TRAP LAID DOWN BY THE
DEFENDANTS
It is humbly submitted by the defendant before this Honourable court that the circumstances
in the present case do not amount to trap. The depth of water maintained in the pool for a
swimmer to dive was according to the minimum prescribed level i.e. 10-12 feet for three
metre wide diving board. The defendants had also very clearly put up a board near the pool
and diving board which read dive at your own risk. The plaintiff got injured due to his own
fault and negligence. He had been continuously diving from 2:30 PM to 6 PM and had even
had a few drinks. The last dive he took was not in a correct position and thus he ended up
hurting himself. He had also been warned by the hotel staff not to indulge in the dangerous
acrobatics which he was doing from the diving board. Thus it is submitted that in the
accident, the defendants had not done any negligent act/omission and the services provided
by the defendant hotel were good in quality and did not have any shortcoming.

7 Schutz v. Blue Dolphin Pools, 123 U.S. 100 [1975].

MEMORIAL ON BEHALF OF THE DEFENDANT

ISSUE III: THAT THERE WAS FAILURE ON PART OF THE PLAINTIFF TO TAKE
REASONABLE CARE OF HIMSELF IN HIS OWN INTEREST AND THE
PLAINTIFF HAD THE LAST OPPORTUNITY TO AVOID THE ACCIDENT

III (a): That there was any failure on part of the party to take reasonable care of himself
in his own interest
On the issue of whether there was any failure on part of the party to take reasonable care of
himself in his own interest, it is humbly submitted that the hotel records clearly show that the
plaintiff had ordered several alcoholic drinks, which were supplied to him by the hotel and
duly consumed by the plaintiff, also here was a warning sign posted under the swimming
pool that warned the visitors to dive at their own risk, and the visitor had been advised against
diving in a dangerous fashion on several occasions by the hotel staff.

In the case of White v Blackmore8 it was held that the owners liability to take reasonable
care is limited to notifying the occupants of the risks involved in the activity being performed
by them, and if the guests upon receiving such information still wilfully undertake the said
activity, the owner of the premise would not be liable for injuries incurred during such
activities. In the current case, the defendants had posted a notice near the swimming pool,
notifying the risks involved in diving, the plaintiff was also approached by the hotel staff
several times and notified that the manner in which he was diving could be potentially
dangerous, and also notified that diving after having consumed could be dangerous, thus
performing the reasonable duty of care it owed to the plaintiff, the plaintiff decided to
undertake the activity that led to the accident while being aware of the risks involved, and
hence failed to take reasonable care of his own well-being, and as such the defendants are not
liable for the injuries incurred.

In the recent case of Baby Apoorva Rai v New India Assurance Co. and Ors.9 The NCDRC
held that if a person voluntarily consumes alcohol before entering a swimming pool, and
injuries are caused due to intoxication, even an insurance company will not be liable to pay
any damages as the plaintiff has failed to exercise reasonable care to protect himself from
8 White v. Blackmore, [1972] 3 W.L.R. 296.

9 Consumer Case No. 401 of 2015.

MEMORIAL ON BEHALF OF THE DEFENDANT

harm. In the current case the plaintiff had consumed alcohol before entering the swimming
pool which led to his accident, the consumption of alcohol was wilful and the plaintiff had
clearly failed to exercise reasonable care.

III (b): That the plaintiff had the last opportunity to avoid the accident
It is humbly submitted that the plaintiff had been duly notified by the hotel of the fact that
the manner in which he was diving could be dangerous, he had also been asked by staff
members not to dive under the influence of alcohol, and thus could have avoided the accident
by not diving in such a manner, after having consumed alcohol. Also according to bystanders
the plaintiff made no efforts to avoid the injury by shielding his head with his hands, which
resulted in the injury to his head, thus from the facts it is clear that it is the plaintiff, and not
the defendants who had the last opportunity to avoid the accident.

ISSUE IV: THAT THE SUFFERING OF THE PLAINTIFF WAS THE DIRECT
RESULT OF HIS OWN NEGLIGENCE AND INACTION
The Honble Supreme Court in the case of Lata Wadhwa and Ors. v. State of Bihar 10 defined
negligence as the failure to take reasonable care. As has already been established, the
Plaintiff in the said case had failed to take reasonable care to protect his person from injury,
first by diving into the swimming pool under the influence of alcohol and subsequently by
not using his hands to protect his head and as such his acts amounted to negligence.

In the case of Sudhir Kumar Rana v. Surinder Singh and Ors. 11 the Honble Supreme Court
defined contributory negligence as the negligence of the plaintiff in not avoiding the
consequences arising from the negligence of some other person, when means and opportunity
are afforded to do so. In the current case, the plaintiff had been notified of the fact that the
manner in which he was diving could be dangerous and had the last opportunity to avoid the
accident, and as such, his act was negligent.

The conduct of the plaintiff in consuming alcohol and entering the swimming pool was
clearly negligent, and as such the defendants are not liable to pay any compensation.12

10 Lata Wadhwa and Ors. v. State of Bihar Writ Petition(Civil) 232 of 1991.

11 Sudhir Kumar Rana v. Surinder Singh and Ors Civil Appeal No. 3321 of 2008.

MEMORIAL ON BEHALF OF THE DEFENDANT

ISSUE V: THAT THE INJURY SUFFERED BY THE DECEASED PLAINTIFF ON
13TH AUGUST, 2012 DID NOT CAUSE HIS DEATH
The counsel humbly submits before the Honble Court that the injury suffered by the plaintiff
on 13 August 2012 was not the cause of his death. In Krishna Bus Service Ltd vs Smt Mangli
and others13, their Lordships have stated the principle as under : "Wherein an action for
negligence the thing causing fatal injury to the deceased and consequent pecuniary loss to
the plaintiff is shown to be under the management of the defendant or his servants and the
accident is such as in the ordinary course of events does not happen if those who have the
management use proper care, that affords reasonable evidence, in the absence of the
Explanation by the defendants, that the accident arose from want of care."

Death resulting from injury' has been defined as follows: "Death resulting from an injury...
covers cases in which an injury aggravates or accelerates an existing condition so that death
ensues earlier than it would in the ordinary course, even though the existing condition would
have ultimately resulted fatally" In Pigney v Pointers Transport Services Ltd 14 relying on Re:
Polemis & Furnace15 Lord Pilcher has said: "if death is directly traceable to the injury in the
accident for which the defendants are responsible, the chain of causation is not broken." In
plain words, if an injury hastens or accelerates the death, directly and not remotely, then in
law the injury is one causing or resulting in death.

It is submitted that a clear and direct nexus should exist between the injury suffered and the
cause of death. In the present case the injury suffered by the plaintiff on 13th August, 2012 has
no relation to the cardiac arrest that took place during the pendency of the proceedings. The
day the plaintiff met with the accident it was reported that the plaintiff was carried out of the
pool with bleeding from the right ear and the body gave an appearance of paralysis in arms
and legs. It is to be noted that no direct relation can be made out between the injuries

12 Consumer Case No. 401 of 2015.

13 Krishna Bus Service Ltd v. Smt Mangli and others [1976] 3 S.C.R. 178.

14 Pigney v. Pointers Transport Services Ltd. 1952 (2) All. E.R. 807.

15 Re: Polemis & Furnace, 1921 (3) K.B. 560.

MEMORIAL ON BEHALF OF THE DEFENDANT

sustained by him at the pool and the cardiac arrest which was the cause of his death two years
later in 2015 when the present suit was initiated.

Cardiac arrest causes are immediate and drastic and include: sudden collapse, no pulse, no
breathing, loss of consciousness etc. cardiac arrest has no relation to medical history of the
victim. The intervening period between the injuries caused by the accident at the pool and the
heart attack is nearly 2 years; no direct connection can possibly be established between them.
Direct causation is a minority test, which addresses only the metaphysical concept of
causation. The main thrust of direct causation is that there are no intervening causes between
an act and the resulting harm. An intervening cause has several requirements: it must 1) be
independent of the original act, 2) be a voluntary human act or an abnormal natural event, and
3) occur in time between the original act and the harm. Direct causation is the only theory
that addresses only causation, and does not take into account the culpability of the original
actor.

According to Scrutton, L.J16 : to determine whether an act is negligent, it is relevant whether

any reasonable person would foresee that the act would cause damage, if he not, the act is not
negligent. It is submitted that plaintiffs death is too remote a consequence of the injuries
suffered by him two years ago. Two years is long time and cardiac arrest is known to be
caused by sudden electrical malfunction in the heart that causes an irregular heartbeat. With
its pumping action disrupted, the heart cannot pump blood to the brain, lungs and other
organs which results in death. The injuries incurred by the plaintiff on August 13 th, 2013
cannot be connected in any manner to the cardiac arrest which occurred two years later when
the suit was filed.

16 Re Polemis and Furness, Wilthy & Co., [1921] 3 K.B. 560.

MEMORIAL ON BEHALF OF THE DEFENDANT

PRAYER

Wherefore, in light of the facts of the case, issues raised, arguments advanced and authorities cited this
Honble Court may be pleased to adjudge and declare that:

The defendants are not liable for any compensation for the consequences of the injury sustained by
the deceased plaintiff as the defendants were not in any manner negligent and had fulfilled their duty.

And pass any other order in favour of the Defendant that it may deem fit in the ends of justice, equity
and good conscience.

Sd/-

Counsel for
Defendant

MEMORIAL ON BEHALF OF THE DEFENDANT