TRESPASS TO THE PERSON

CHAPTERS CONTENT
Introduction Assault Battery
Injury Right of Disciplining the Wife Parental Authority Beating the Suspects and Criminals Homicide Wilful Murder Homicide Resembling Wilful Murder Homicide by Mistake Medical Negligence

Cases False Imprisonment

INTRODUCTION
Any direct, intentional or negligent, interference with the person or liberty of another is a trespass unless the defendant is justified in law. Trespass to the person includes assault, battery and false imprisonment.
Elements of trespass: A positive act A direct act of the D to the P (his land or goods) Proven without the P have to prove that he has suffered any injury or loss. (actionable per se)

ASSAULT
Meaning: An act of the D which causes to the P reasonable apprehension of immediate battery on him, which amount to a wrong. Touch to a person without his/her consent or some other lawful reason is actionable. Mere words do not constitute an assault.

WORDS + PREPARATION=

ASSAULT

Case: Reid v. Coke (1853) 13 CB 850 Rolling up ones sleeve + words indicating that it was being done in preparation for punching someone in the face was sufficient

CONT
Elements of assault:
The mental state of the D
The effect on the P (The P must feel reasonable apprehension that a force will be inflicted upon him) Objective test: would a reasonable man faced with the same situation that the P was in? If yes, this element be fulfilled. Capability to carry out the threat Objective test: Would a reasonable man, who is in the Ps position, feel reasonable fear that there is a threat of immediate force upon himself? If yes, the requirement is fulfilled. Bodily movement (a positive act in the circumstances, indicating that the D will carry out his threat).

CONT
Essentials of assaults:
There must be some act consisting of some gestures or preparation to commit battery (some bodily movement is necessary and words accompanying a gesture or act may negative its appearance of being an assault) Reasonable fear of harm Ability to carry out the threat (where the P has no reasonable belief that the D has present ability to affect his purpose, there is no assault)

Case: Smith v Chief Sup, Working Police Station (1983) A woman was held to be assaulted when she saw the accused looking through her closed bedsitting room window at 11 pm. Although the accused was outside her room before he could actually inflict violence upon her, under S.351, he would intend or know that she was likely to apprehend that he was about to use criminal force on her

CONT
Based on the idea of dignity of mankind, Shariah goes to a great length to protect every citizen from interference with his personal liberty and dignity. Al-Quran, 95: 4: Verily we created man in the best conformation. Umar ibn Al-Khattab addressed his governors as follows: Hit not the Muslims, lest they should be humiliated. Deny not their rights, lest they should become faithless and place them not in the jungle lest they should be lost.

BATTERY
Meaning: The intentional or negligence and direct application of force to another person who is not volens.
To bring any material object into contact with anothers person is a sufficient application of force to constitute a battery. Elements: The mental state of the D The Ds act was under his control Contact (There will be no battery if there is no contact or application of force with the Ps body or clothing Without the Ps consent

CONT..
Scott v. Shepherd (1773) 2 Wm Bl 892: A lighted squib was thrown by the D into an open market area. A picked it up and threw it upon B, who then picked it up and threw it away. The squib hit the P whereupon it burst into flames. Court held that the D was liable for the tort of trespass to person although his initial gesture did not directly affect the P. A and B react for their own safety and so they did not have the required intention to commit the act. Gibbons v. Pepper (1695) 2 Salk 637: D was riding a horse when someone hit the horse from behind, causing the horse to bolt. The horse collided with the P, and in an action against the D, the court found the D not liable as the incident of the horse bolting and colliding with the P was outside his control.

CONT
INJURY
Causing seriously bodily harm or injury is a tort against the person, for which retaliation or compensation is due. Wounding may be intentional or unintentional. Whoever causes bodily pain, harm, disease, infirmity or injury to any person or impairs, disables or dismembers any limb or organ of his body, without causing his death is said to cause hurt.

CONT
Whoever permanently dismembers, amputates or cuts or severs any limb or organ or part of the body of another person is said to cause itlaaf-iudhw. Whoever destroys or permanently impairs the functioning or power of a limb or an organ of the body or permanently disfigures such limb or organ is said to cause itlaaf-i-salahiyat-i-udhw.

CONT
Rights of Disciplining the Wife
This matter is governed in Shariah by Gods words; As for those from whom ye fear rebellion, admonish them and banish them to beds apart and scourge them. Then, if they obey you, seek not a way against them. (Al-Quran, 4: 34) Prophet reputed to have said in his sermon on the occasion of the farewell pilgrimage, that beating should be resorted to only if the wife has become guilty in an obvious manner of immoral conduct and that it should be done in such a way as not to cause pain.

CONT
That beating should be more or less a symbolic If the husband exceeds his legal right so that his beating leaves marks, he is held responsible on both criminal and civil grounds depending on the severity of the injury and is severely restrained depending on the wifes condition. Hanafi: The wife who is harmed has the right to ask for divorce. Shafii: If the wife is harmed without reason, and if husband ignores the judges warning, the judge may separate them until the husband agrees to treat her fairly.

CONT
Parental authority
The basic to Shariah is that the father/grandfather/guardian/instructor have the authority to discipline a minor.
If the boy dies (in case the father/guardian had not granted permission for the beating) the instructor is liable as an aggressor. If the instructor beats the boy unjustly (other than disciplining), he is liable for whatever injury he causes.

CONT
Beating the Suspects/Criminals
Battery may be justified against a person accused of theft to make him confess on the basis of the doctrine of public good (maslahah) propounded by Imam Malik.

CONT..
HOMICIDE
Meaning: The killing of human being by a human being.

Categories: Premeditated, involuntary and voluntary.

Types of offences: Wilful murder, culpable homicide (with intention to cause death/unlawful) and homicide by rash/ negligent act.

CONT
Wilful murder (qatli amd):
The act by which the death is caused is done with the intention of causing death The act is done with the intention to cause bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused The act is done with the intention to cause bodily injury to any person and the bodily injury intended to the infliction is sufficient in the ordinary course of nature to cause death If the offender knows that his act is so imminently dangerous that it must in all probability cause death

CONT
If a person intentionally strikes another person with a weapon or with something which amounts to a weapon, he is said to have committed wilful murder. Death caused by fire or throwing into water shall also amount to wilful murder, if under ordinary circumstances it is not possible for the victim to escape death. In order to determine as to whether an act by which death was caused was likely to cause death or not, the means by which death was caused , environment, weather, health, physical condition of the offender and the victim shall be taken into consideration.

CONT..
According to Ibn Qudamah, there is no expiation in wilful murder but the same is allowed in cases of homicide resembling murder and homicide by mistake. Al-Baqarah: 179: Oh ye who believe! Retaliation is prescribed for you in the matter of the murdered, the free man for the free man, the slave for the slave, the female for the female. And for him who is forgiven somewhat by his brother prosecution according to usage and payment unto him in kindness. This is an alleviation and a mercy from your Lord. He who transgressed after this will have a painful doom. And there is life for you in retaliation, oh men of understanding, that ye may ward off (evil). Punishment in the Quran for wilful murder (irrespective of religion): Qisas (Al-Baqarah: 179) Diyah (Blood-money)

CONT..
HOMICIDE RESEMBLING WILFUL MURDER
The actual presence or absence in the mind of the accused of a deliberate intent to kill is, a matter known only by the accused himself. A court can only infer the intent of the accused from his external conduct or from his own or others testimony as to his state of mind. Under majority of fuqaha (Hanafi, Hanbali and Syafii), the presence of homicidal intent is determined exclusively by the means used to kill. Where the deliberate act is not such as normally results in death, the offence is classified ass quasi-deliberate and the offender is not subject to death penalty.

CONT
Culpable homicide will not amount to murder if:
1. the offender cause death while his power of self-control was deprived by grave and sudden provocation, by mistake or by accident Lawful exercise of the powers of public servant (sentence to death) Lawful exercise of the right of private defence The killing of an outlaw (apostate, rebel, heretic, not legally protected) Bona fide act intended to benefit the health of the deceased and performed at his request

2. 3. 4. 5.

CONT..
Punishment in the Quran for homicide resembling murder:
Believer kills believer: Free a believing slave Pay compensation to the deceased family
Believer kills non-Believer: Free a believing slave

Believer kills people whom have a treaty of mutual alliance: Free a believing slave Pay compensation to the deceased family

CONT
Diyah:
Money or compensation due in cases of homicide or wounding 10,000 dirham equivalent to 30.63 kg of silver or its value in money at the time of decision of the case.

Aqilah:
All male, adult and sane member of a group, class of person, association, institution, organisation, company, corporation, establishment, department, trade union or organised tribe, through which the offender or the convict receives or expects to receive help and support.

CONT..
For those who find this beyond their means, they are prescribed a fast for 2 consecutive months According to Syed Abul Ala Maududi, Islam recommends reconciliation even in the murder cases so that peace and tranquility emerges ultimately (Tafhimul Quran, 1979: 137-139).

CONT
HOMICIDE BY MISTAKE
Types:
Mistake of intention Mistake of act

Whoever without any intention to cause death of, or cause harm to a person causes death of such person, either by mistake of act or by mistake of act, is said to commit homicide by mistake.

CONT
Punishment in the Quran for homicide by mistake:
Believer kills believer: Free a believing slave Pay compensation to the deceased family

Believer kills non-Believer: Free a believing slave

Believer kills people whom have a treaty of mutual alliance: Free a believing slave Pay compensation to the deceased family

CONT
MEDICAL NEGLIGENCE
The general rule is that a doctor must exercise such care as accords with the standards of reasonably competent medical men of his age. Imam Abu Hanifa: Since medical advice and treatment are inevitable, therefore, it is not in the interest of the public to sue the medical man which may lead to low morale of the medical professionals.

Imam Syafii: Medical professionals are not accountable if: Consent by patient (impliedly or expressly) The aim is to cure the patient and not to harm

CONT
Imam Ahmad: Medical professionals cannot be sued for negligence, provided that they act according to prevalent standards of the medical profession. Imam Malik (and Imam Nawawi): Doctors will be accountable only if they act negligently. How could medical practitioners compensate? Blood money or pay monetary compensation.

CONT
If the doctor operated upon a patient and asked someone else to his subordinate staff or junior colleague and the patient died as a result of the negligence on the part of the person who was delegated the duty, his legal position will be analogical with a surgeon who asks a patient to take poison for medical purposes for immediate treatment. If the operation was done by someone else without the consent of the first surgeon, only the second surgeon liable.

CONT
Consent of a minor patient:
Imam Abu Hanifa, Imam Syafii, Imam Ahmad and Imam Malik: by parent or guardian Abdul Qadir Awdah: if there is no parent or guardian or relative, then the government may give consent on behalf of the patient.

Unskilled doctors are prohibited from pursuing certain occupations because of danger to the public.

Majallah Al-Ahkam: 964: Some persons also, who are a public harm like an unskilled doctor, are restrained.

CONT
Liability for medical negligence extends to hospitals and professional staff thereof, including full time and part time employees, medical officers, house surgeons, visiting surgeons, physicians, anaesthetists, radiographers, druggists, barbers and circumcisers.

Imam Nawawi: Anyone who performs circumcision at an age when child is not yet strong enough to support, is liable under the law of tort if the operation caused injury or death.
Abdul Qader Awdah: Medical negligences idea propounded by Imam Abu Hanifa, Syafii, Ahmad and Malik is exactly the same with their modern counterparts in England, Germany, Egypt and France.

FALSE IMPRISONMENT
Meaning: Restriction of a persons freedom of movement. The infliction of bodily restrain which causes the confinement of the P within an area determined by the D which is not expressly or impliedly authorised by law.

Elements: The mental state of the D The restrain must be a direct consequence of the Ds act. The restrain must be complete.

CONT..
The mental state of the D D must have committed the restrain intentionally which directly results in the confinement of the P. W. Elphinstone v. Lee Leng San (1938) MLJ 130: Although it has been suggested that negligence would suffice, it was held that false imprisonment cannot be established through negligence. Intention of the doer is a prerequisite.

 The restrain must be a direct consequence of the Ds act

Only the person who directly causes the confinement may be successfully sued for false imprisonment.
He may be liable because he imprisoned the P or that he had instigated another person to confine or imprison the P. Harnett v. Bond (1925) AC 669: P lived in an asylum run by D2. P was given a months leave but D2 was given the discretion to call the P back if he felt that the P could not look after himself during that one month. On his second day out, the P went to an office to pay a visit to some people. D1 who was there was of the opinion that the P was acting strangely. He called D2, who asked D1 to make sure that the P stayed there, as D2 would send a car round to fetch the P. The car arrived some three hours later and the P was brought back to the asylum. D2 found the P to be insane and did not let him out. 9 years thereafter, the P was sent from one institution to another. He was finally proven sane and released. Court found D1 liable during 3 hours restraint and D2 for 9 years restraint.

CONT

CONT
The restraint must be complete
Bird v. Jones (1845) 7 QB 742: A part of a bridge was appropriate for seats for a regatta. The P insisted on passing along the part so appropriated. The D stopped the P and directed him to take another route in order to proceed to the other side of the bridge. The P refused and remained there for half an hour. Court held that there was no false imprisonment as the restraint was not complete. When there is a reasonable way out, it must be used and the P cannot in those circumstances, claim that his liberty has been restrained. If the person can only escape at the risk of injury to himself, the the route of escape cannot constitute a reasonable way out. What amount to reasonable will depend on the facts and circumstances surrounding the case. Wright v Wilson (1699) 1 Ld Raym 739: Although escapism meant to have trespassed on anothers land, no false imprisonment arose.