tresspass to land

8/13/2019 tresspass to land

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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 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:


Believer kills people whom have a treaty of

mutual alliance:




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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:



Believer kills non-Believer:


Believer kills people whom have a treaty ofmutual alliance:




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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 restrain must be a direct consequence of theDs act.

The restrain must be complete.


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CONT..


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.

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