TRESPASS TO THE PERSON

CHAPTER’S 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. WORDS + PREPARATION= ASSAULT . • Touch to a person without his/her consent or some other lawful reason is actionable. which amount to a wrong. • Mere words do not constitute an assault.

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

– Capability to carry out the threat • Objective test: Would a reasonable man. – Bodily movement (a positive act in the circumstances. who is in the P’s position. feel reasonable fear that there is a threat of immediate force upon himself? If yes. . the requirement is fulfilled. this element be fulfilled. indicating that the D will carry out his threat).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.

there is no assault) .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.

Although the accused was outside her room before he could actually inflict violence upon her. under S.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.351. he would intend or know that she was likely to apprehend that he was about to use criminal force on her .

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

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 another’s person is a sufficient application of force to constitute a battery. • Elements: – The mental state of the D – The D’s act was under his control – Contact (There will be no battery if there is no contact or application of force with the P’s body or clothing – Without the P’s consent .

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

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

amputates or 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 limb or organ is said to cause itlaaf-i-salahiyat-i-’udhw.CONT… – Whoever permanently dismembers. .

4: 34) – Prophet reputed to have said in his sermon on the occasion of the farewell pilgrimage. seek not a way against them. 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. Then.CONT… • Rights of Disciplining the Wife – This matter is governed in Shariah by God’s words. . admonish them and banish them to beds apart and scourge them. if they obey you.’ (Al-Quran. ‘As for those from whom ye fear rebellion.

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

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

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. .

– Categories: Premeditated. culpable homicide (with intention to cause death/unlawful) and homicide by rash/ negligent act. – Types of offences: Wilful murder.CONT.. involuntary and voluntary. . • HOMICIDE – Meaning: The killing of human being by a human being.

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 .

health. if under ordinary circumstances it is not possible for the victim to escape death. environment. . physical condition of the offender and the victim shall be taken into consideration. weather. the means by which death was caused . – In order to determine as to whether an act by which death was caused was likely to cause death or not. – Death caused by fire or throwing into water shall also amount to wilful murder.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.

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

CONT. – Under majority of fuqaha’ (Hanafi. the presence of homicidal intent is determined exclusively by the means used to kill. a matter known only by the accused himself. Hanbali and Syafii). – Where the deliberate act is not such as normally results in death. .. • HOMICIDE RESEMBLING WILFUL MURDER – The actual presence or absence in the mind of the accused of a deliberate intent to kill is. the offence is classified ass ‘quasi-deliberate’ and the offender is not subject to death penalty. – 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.

heretic. . the offender cause death while his power of self-control was deprived by grave and sudden provocation. 3. rebel. 4.CONT… – Culpable homicide will not amount to murder if: 1. not legally protected) Bona fide act intended to benefit the health of the deceased and performed at his request 2. 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. 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 .

through which the offender or the convict receives or expects to receive help and support. class of person. trade union or organised tribe.63 kg of silver or its value in money at the time of decision of the case. . adult and sane member of a group.CONT… – Diyah: • Money or compensation due in cases of homicide or wounding • 10. company.000 dirham equivalent to 30. corporation. – Aqilah: • All male. association. organisation. establishment. department. institution.

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

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. is said to commit homicide by mistake. either by mistake of act or by mistake of act. .

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 • .

– 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 . therefore.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. it is not in the interest of the public to sue the medical man which may lead to low morale of the medical professionals.

. 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… – Imam Ahmad: Medical professionals cannot be sued for negligence.

. – If the operation was done by someone else without the consent of the first surgeon.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. only the second surgeon liable. his legal position will be analogical with a surgeon who asks a patient to take poison for medical purposes for immediate treatment.

– Unskilled doctors are prohibited from pursuing certain occupations because of danger to the public. are restrained’. Imam Syafii. – Majallah Al-Ahkam: 964: ‘Some persons also. who are a public harm like an unskilled doctor. .CONT… – Consent of a minor patient: • Imam Abu Hanifa. 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.

– Imam Nawawi: Anyone who performs circumcision at an age when child is not yet strong enough to support. Ahmad and Malik is exactly the same with their modern counterparts in England. – Abdul Qader Awdah: Medical negligence’s idea propounded by Imam Abu Hanifa. radiographers. physicians. druggists. Egypt and France. including full time and part time employees. anaesthetists. visiting surgeons. . barbers and circumcisers. Germany.CONT… – Liability for medical negligence extends to hospitals and professional staff thereof. Syafii. is liable under the law of tort if the operation caused injury or death. house surgeons. medical officers.

• Elements: – The mental state of the D – The restrain must be a direct consequence of the D’s act. – The restrain must be complete. .FALSE IMPRISONMENT • Meaning: Restriction of a person’s 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.

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

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

it must be used and the P cannot in those circumstances. claim that his liberty has been restrained.CONT… • The restraint must be complete – Bird v. – Wright v Wilson (1699) 1 Ld Raym 739: Although escapism meant to have trespassed on another’s land. – What amount to reasonable will depend on the facts and circumstances surrounding the case. no false imprisonment arose. the the route of escape cannot constitute a reasonable way out. . 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. 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 insisted on passing along the part so appropriated. – If the person can only escape at the risk of injury to himself. Jones (1845) 7 QB 742: A part of a bridge was appropriate for seats for a regatta.

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