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TRESPASS TO THE
PERSON
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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
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INTRODUCTION
Any direct, intentional or negligent, interferencewith the person or liberty of another is a trespassunless the defendant is justified in law.
Trespass to the person includes assault, battery andfalse imprisonment.
Elements of trespass:
Apositive act A direct act of the D to the P (his land or goods)
Proven without the P have to prove that he hassuffered any injury or loss. (actionable per se)
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ASSAULT
Meaning: An act of the D which causes to the Preasonable apprehension of immediate battery on
him, which amount to a wrong.
Touch to a person without his/her consent or some otherlawful reason is actionable.
Mere words do not constitute an assault.
WORDS + PREPARATION= ASSAULT
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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 theface was sufficient
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CONT Elements of assault:
The mental state of the D
Theeffect on the P (The P must feel reasonableapprehension 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, thiselement be fulfilled.
Capabilityto carry out the threat
Objective test: Would a reasonable man, who is inthe Ps position, feel reasonable fear that there is athreat of immediate force upon himself? If yes, therequirement is fulfilled.
Bodily movement (a positive act in thecircumstances, indicating that the D will carry out his
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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
Abilityto carry out the threat (where the P has no reasonablebelief that the D has present ability to affect his purpose, there is
no assault)
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Case: Smith v Chief Sup, Working PoliceStation (1983)
A woman was held to be assaultedwhen she saw the accused looking
through her closed bedsitting roomwindow at 11 pm. Although the accusedwas outside her room before he couldactually inflict violence upon her, under
S.351, he would intend or know thatshe was likely to apprehend that hewas about to use criminal force on her
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CONT
Based on the idea of dignity of mankind,Shariah goes to a great length to protectevery citizen from interference with hispersonal liberty and dignity.
Al-Quran, 95: 4: Verily we created man in thebest conformation.
Umar ibn Al-Khattab addressed his governorsas follows: Hit not the Muslims, lest theyshould be humiliated. Deny not their rights,lest they should become faithless and placethem not in the jungle lest they should belost.
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BATTERY
Meaning: The intentional or negligence anddirect
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
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CONT..
Scott v. Shepherd (1773) 2 Wm Bl 892: A lighted squib
was thrown by the D into an open market area. A pickedit 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 notdirectly 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 asthe incident of the horse bolting and colliding with the P
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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 ordismembers any limb or organ of his body, without
causing his death is said to cause hurt.
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CONT
Whoever permanently dismembers, amputatesor cuts or severs any limb or organ or part of
the body of another person is said to cause
itlaaf-i-udhw.
Whoever destroys or permanently impairs the
functioning or power of a limb or an organ of
the body or permanently disfigures such limbor organ is said to cause itlaaf-i-salahiyat-i-
udhw.
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CONT
Rights of Disciplining the Wife
This matter is governed in Shariah by Godswords;As for those from whom ye fear rebellion,
admonish them and banish them to beds apartand scourge them. Then, if they obey you, seeknot a way against them. (Al-Quran, 4: 34)
Prophet reputed to have said in his sermon on theoccasion of the farewell pilgrimage, that beatingshould be resorted to only if the wife has becomeguilty in an obvious manner of immoral conduct
and that it should be done in such a way as not tocause ain.
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CONT
That beating should be more or less a symbolic
If the husband exceeds his legal right so that hisbeating leaves marks, he is held responsible on bothcriminal and civil grounds depending on the severity of
the injury and is severely restrained depending on thewifes condition.
Hanafi: The wife who is harmed has the right to ask for
divorce.
Shafii: If the wife is harmed without reason, and ifhusband ignores the judges warning, the judge mayseparate them until the husband agrees to treat herfairly.
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CONT
Parental authority
The basic to Shariah is that thefather/grandfather/guardian/instructor have the
authority to discipline a minor.
If the boy dies (in case the father/guardian had notgranted permission for the beating) the instructor
is liable as an aggressor.
If the instructor beats the boy unjustly (other thandisciplining), he is liable for whatever injury he
causes.
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CONT
Beating the Suspects/Criminals
Battery may be justified against a person
accused of theft to make him confess onthe basis of the doctrine of public good
(maslahah) propounded by Imam Malik.
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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 homicideby rash/ negligent act.
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CONT Wilful murder (qatli amd):
The act by which the death is caused is done with theintention of causing death
The act is done with the intention to cause bodilyinjury as the offender knows to be likely to causethe death of the person to whom the harm is caused
The act is done with the intention to cause bodilyinjury to any person and the bodily injury intendedto the infliction is sufficient in the ordinary courseof nature to cause death
If the offender knows that his act is so imminently
dangerous that it must in all probability causedeath
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CONT
If a person intentionally strikes another personwith a weapon or with something which amountsto a weapon, he is said to have committed wilfulmurder.
Death caused by fire or throwing into water shallalso amount to wilful murder, if under ordinarycircumstances it is not possible for the victim toescape death.
In order to determine as to whether an act bywhich death was caused was likely to causedeath or not, the means by which death wascaused , environment, weather, health, physicalcondition of the offender and the victim shall be
taken into consideration.
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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 isprescribed for you in the matter of the murdered, the freeman for the free man, the slave for the slave, the female
for the female. And for him who is forgiven somewhat byhis brother prosecution according to usage and paymentunto him in kindness. This is an alleviation and a mercyfrom your Lord. He who transgressed after this will havea 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 (irrespectiveof religion):
Qisas (Al-Baqarah: 179)
Diyah (Blood-money)
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CONT.. HOMICIDE RESEMBLING WILFUL MURDER
The actual presence or absence in the mind of theaccused of a deliberate intent to kill is, a matter knownonly by the accused himself.
A court can only infer the intent of the accused from hisexternal conduct or from his own or others testimony as tohis state of mind.
Under majority of fuqaha (Hanafi, Hanbali and Syafii), thepresence of homicidal intent is determined exclusively bythe means used to kill.
Where the deliberate act is not such as normally results indeath, the offence is classified ass quasi-deliberate andthe offender is not subject to death penalty.
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CONT Culpable homicide will not amount to murder if:
1. the offender cause death while his power of self-controlwas deprived bygrave and sudden provocation, bymistake or by accident
2. Lawful exercise of the powers of public servant(sentence to death)
3. Lawful exercise of the right ofprivate defence
4. The killing of an outlaw(apostate, rebel, heretic, notlegally protected)
5. Bona fide act intended to benefit the health of thedeceased and performed at his request
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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
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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 theoffender or the convict receives or expects to receivehelp and support.
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CONT..
For those who find this beyond their means,
they are prescribed a fast for 2 consecutive
months
According to Syed AbulAlaMaududi, Islam
recommends reconciliation even in the murder
cases so that peace and tranquility emerges
ultimately (Tafhimul Quran, 1979: 137-139).
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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 ofsuch person, either by mistake of act or by
mistake of act, is said to commit homicide by
mistake.
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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 ofmutual alliance:
Free a believing slave
Pay compensation to the deceased family
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CONT MEDICAL NEGLIGENCE
The general rule is that a doctor must exercise suchcare as accords with the standards of reasonablycompetent medical men of his age.
Imam Abu Hanifa: Since medical advice and treatmentare inevitable, therefore, it is not in the interest of thepublic to sue the medical man which may lead to lowmorale of the medical professionals.
Imam Syafii: Medical professionals are notaccountable if:
Consent by patient (impliedly or expressly)
The aim is to cure the patient and not to harm
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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.
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CONT
If the doctor operated upon a patient and askedsomeone 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 beanalogical 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.
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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.
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CONT Liability for medical negligence extends to hospitals
and professional staff thereof, including full time andpart time employees, medical officers, housesurgeons, visiting surgeons, physicians, anaesthetists,radiographers, druggists, barbers and circumcisers.
Imam Nawawi: Anyone who performs circumcision atan age when child is not yet strong enough to support,is liable under the law of tort if the operation causedinjury or death.
Abdul Qader Awdah: Medical negligences ideapropounded by Imam Abu Hanifa, Syafii, Ahmad andMalik is exactly the same with their moderncounterparts in England, Germany, Egypt and France.
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FALSE IMPRISONMENT
Meaning: Restriction of a persons freedom ofmovement. 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 theDs act.
The restrain must be complete.
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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 doeris a prerequisite.
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CONT The restrain must be a direct consequence of
the Ds act
Only the person who directly causes the confinement may besuccessfully 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 tocall the P back if he felt that the P could not look after himselfduring 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 theopinion that the P was acting strangely. He called D2, who askedD1 to make sure that the P stayed there, as D2 would send a carround to fetch the P. The car arrived some three hours later andthe P was brought back to the asylum. D2 found the P to beinsane and did not let him out. 9 years thereafter, the P was sentfrom one institution to another. He was finally proven sane and
released. Court found D1 liable during 3 hours restraint and D2for 9 ears restraint.
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CONT
The restraint must be complete
Bird v. Jon es (1845) 7 QB 742: A part of a bridge wasappropriate for seats for a regatta. The P insisted on passingalong the part so appropriated. The D stopped the P and directedhim 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 restraintwas 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 beenrestrained.
If the person can only escape at the risk of injury to himself, thethe route of escape cannot constitute a reasonable way out.
What amount to reasonable will depend on the facts andcircumstances surrounding the case.