Adli is determined to be an ajir khass (private employee) of Karim, as a doctor working at Karim's hospital for a definite time period under a contract of service. For vicarious liability to be established, there must be a contract between the employer (Karim) and employee (Adli), and a tortious act committed by the employee (Adli) in the course of employment that causes harm to a third party (Elyas). As the elements are satisfied, Karim would likely be vicariously liable for any tort committed by Adli during the course of Adli's employment at the hospital.
The document summarizes key aspects of The Workmen's Compensation Act of 1923 in India. It discusses doctrines like assumed risk, common employment, and contributory negligence that previously allowed employers to defend against compensation claims. The Act introduced a no-fault system making employers liable to pay compensation for work-related injuries or deaths. It covers all employees directly or indirectly involved in an establishment, except casual workers. Employers are not liable if the injury results in less than 3 days of disablement or was willfully caused by the employee being intoxicated, disobeying safety rules, or removing safety equipment.
This document summarizes key aspects of vicarious liability under Malaysian law. It defines vicarious liability as holding one person liable for the torts of another, even without fault. The most common scenario is employers being liable for employee torts committed during work. It discusses tests to determine employment relationships, including control over work and business integration. It analyzes several cases that apply these tests and define elements of vicarious liability, such as the relationship between employer and employee and torts occurring during work conduct. The document provides an overview of the concept and application of vicarious liability in Malaysia.
Presentation on Employment Law in Malaysia - for Masters class @ UniRazakKevin Koo
This document provides an outline and summary of a presentation on employment laws in Malaysia given by two students, Adnan Seman and Kevin Koo Seng Kiat, at Universiti Tun Abdul Razak. The presentation covers several key topics related to employment laws in Malaysia, including hiring processes and requirements, classifications of workers, rights and responsibilities of employees, minimum standards for wages and benefits, and regulations regarding termination of employment.
Unit 1 Industrial Relation
Unit 2 Industrial Dispute Act, 1947
Unit 3 Trade Union Act, 1926 & worker's Participation in Management
Unit 4 The Industrial Employment Standing Order act 1946 & Labor Welfare
Unit 5 Factories Act, 1948
Unit 6 Contract Labor Act, 1970 & Child Labor Act, 1986.
The document summarizes the key aspects of the Employees Compensation Act, 1923 in India. It outlines the objectives of the act, which is to provide quick compensation to employees or their dependents for work-related injuries or diseases. It covers the definitions, scope, procedures for calculating compensation amounts for death, injury types, employer liability including when contractors are involved, penalties for non-compliance, and prohibited contracting-out of compensation. The act aims to provide social security to employees in a faster manner than civil court proceedings.
The Industrial Relations Act of 1967 provides the legal framework for regulating relations between employers and employees/trade unions in Malaysia. The Act aims to prevent and resolve disputes arising from their relationships, promote democratic self-governance in industry, and ensure the speedy resolution of trade disputes. It covers important areas like rights of workers and unions, recognition of unions, collective bargaining, dispute resolution, and restrictions on strikes and lockouts. The Act works together with the Employment Act of 1955 and Trade Unions Act of 1959 to form the basis of Malaysia's industrial relations system.
The Workmen's Compensation Act of 1923 was India's first social security law. It established a system to provide compensation to workers who are injured or disabled during the course of their employment. The act applies to hazardous occupations like railways, factories, mines, construction, and transport. It requires employers to pay compensation for work-related injuries and occupational diseases. State governments are responsible for administering the act and appointing commissions to settle disputed claims and revise periodic payments to injured workers or their dependents. The act aimed to provide social security to workers in India's developing industrial sector.
The document summarizes key aspects of The Workmen's Compensation Act of 1923 in India. It discusses doctrines like assumed risk, common employment, and contributory negligence that previously allowed employers to defend against compensation claims. The Act introduced a no-fault system making employers liable to pay compensation for work-related injuries or deaths. It covers all employees directly or indirectly involved in an establishment, except casual workers. Employers are not liable if the injury results in less than 3 days of disablement or was willfully caused by the employee being intoxicated, disobeying safety rules, or removing safety equipment.
This document summarizes key aspects of vicarious liability under Malaysian law. It defines vicarious liability as holding one person liable for the torts of another, even without fault. The most common scenario is employers being liable for employee torts committed during work. It discusses tests to determine employment relationships, including control over work and business integration. It analyzes several cases that apply these tests and define elements of vicarious liability, such as the relationship between employer and employee and torts occurring during work conduct. The document provides an overview of the concept and application of vicarious liability in Malaysia.
Presentation on Employment Law in Malaysia - for Masters class @ UniRazakKevin Koo
This document provides an outline and summary of a presentation on employment laws in Malaysia given by two students, Adnan Seman and Kevin Koo Seng Kiat, at Universiti Tun Abdul Razak. The presentation covers several key topics related to employment laws in Malaysia, including hiring processes and requirements, classifications of workers, rights and responsibilities of employees, minimum standards for wages and benefits, and regulations regarding termination of employment.
Unit 1 Industrial Relation
Unit 2 Industrial Dispute Act, 1947
Unit 3 Trade Union Act, 1926 & worker's Participation in Management
Unit 4 The Industrial Employment Standing Order act 1946 & Labor Welfare
Unit 5 Factories Act, 1948
Unit 6 Contract Labor Act, 1970 & Child Labor Act, 1986.
The document summarizes the key aspects of the Employees Compensation Act, 1923 in India. It outlines the objectives of the act, which is to provide quick compensation to employees or their dependents for work-related injuries or diseases. It covers the definitions, scope, procedures for calculating compensation amounts for death, injury types, employer liability including when contractors are involved, penalties for non-compliance, and prohibited contracting-out of compensation. The act aims to provide social security to employees in a faster manner than civil court proceedings.
The Industrial Relations Act of 1967 provides the legal framework for regulating relations between employers and employees/trade unions in Malaysia. The Act aims to prevent and resolve disputes arising from their relationships, promote democratic self-governance in industry, and ensure the speedy resolution of trade disputes. It covers important areas like rights of workers and unions, recognition of unions, collective bargaining, dispute resolution, and restrictions on strikes and lockouts. The Act works together with the Employment Act of 1955 and Trade Unions Act of 1959 to form the basis of Malaysia's industrial relations system.
The Workmen's Compensation Act of 1923 was India's first social security law. It established a system to provide compensation to workers who are injured or disabled during the course of their employment. The act applies to hazardous occupations like railways, factories, mines, construction, and transport. It requires employers to pay compensation for work-related injuries and occupational diseases. State governments are responsible for administering the act and appointing commissions to settle disputed claims and revise periodic payments to injured workers or their dependents. The act aimed to provide social security to workers in India's developing industrial sector.
The document discusses several Indian labour laws and legislation:
- The Employees' Compensation Act of 1923 provided compensation to workmen for injuries sustained during employment. It was a pioneering act that provided some social security.
- The Trade Unions Act of 1926 defined trade unions and regulated their formation and activities. It facilitated unionization in both organized and unorganized sectors.
- The Payment of Wages Act of 1936 regulated the payment, deductions, and recovery of wages to ensure they are paid correctly and on time. It prohibited unauthorized deductions from wages.
The document provides an overview of termination of employees laws and challenges in Malaysia presented by Miss Loh Sub Mui. It discusses:
- The rights of employers and employees. Employers have the right to promote, transfer, and determine workforce size while employees have rights to security, safe working conditions, and union participation.
- Key statutory provisions around termination from the Employment Act 1955 including requiring notice periods of 4-8 weeks depending on length of service and allowing termination without notice by paying indemnity.
- Challenges around proving just cause for termination such as misconduct, negligence, poor performance, and managing probationary periods. Proper documentation of warnings and opportunities for improvement is important.
Compensation under employees compensation actIshaan Savla
The document summarizes the key aspects of the Employee's Compensation Act 1923 in India. It outlines that the act provides compensation to employees for injuries sustained in the workplace. It details what types of injuries and circumstances qualify for compensation, including death, permanent or temporary disability. It also explains how compensation amounts are calculated based on factors like monthly wages and age, with examples provided. Relevant case law is also briefly discussed where the Supreme Court ruled an accident occurred during the course of employment and compensation was due.
This document provides an overview of the UAE Labour Law, including definitions, general provisions, rules around the employment of workers, children, and women. Some key points:
1) It establishes definitions for terms like employer, worker, employment contract, and occupational injury.
2) Certain categories of employees like government workers are excluded from the law's provisions.
3) It outlines rules for prioritizing national workers for jobs and obtaining work permits for non-nationals.
4) Children under 15 cannot be employed and rules are established for their maximum hours and types of permitted work.
5) Women generally cannot work at night and rules define night hours. Exceptions are provided for some roles.
Stark Ltd seeks to take legal action against Mary and Wonderful Ltd regarding Mary's resignation and employment with Wonderful Ltd.
For the first issue, Stark Ltd cannot seek specific performance to enforce the employment contract as contracts for personal services cannot normally be specifically enforced. However, Stark Ltd can seek an injunction to enforce the negative agreement prohibiting Mary from working for other companies for one year after leaving Stark Ltd.
For the second issue, Stark Ltd can seek an injunction to prevent Mary from taking materials she developed for Stark Ltd. An Anton Piller order may also be granted to search Mary and Wonderful Ltd's premises for these materials if Stark Ltd can show a strong case, potential damage, and the risk of evidence
Migrant workers in malaysia & protection under domestic lawnazuzila
The document discusses migrant worker rights and protections under Malaysian domestic law. It makes three key points:
1) Malaysian laws like the Constitution and Employment Act provide protections for both documented and undocumented migrant workers, guaranteeing them equal treatment and non-discrimination. However, in practice migrant workers face barriers in accessing justice systems.
2) While migrant workers have the legal right to join unions, some laws discriminate by prohibiting them from holding union leadership roles. Several laws also permit the "Foreign Workers First Out" discriminatory retrenchment policy.
3) Migrant workers need better support systems when pursuing legal claims to prevent employers from cancelling permits. The government should implement recommendations to allow workers to remain
The document is an offer letter from Thesis Scientist Pvt. Ltd to a new employee. It details the terms of employment including the job title and responsibilities, salary, benefits, probation period, confidentiality agreement, and other standard policies. Acceptance of the offer is subject to signing the letter and attached schedules which outline the job description, terms and conditions, and employee covenants regarding confidentiality and intellectual property.
Adamson and anangu pitjantjatjara yankunytjatjara inc fwc decisionFlint Wilkes
QUT Business School - The Australian Centre of Philanthropy and Non Profit Studies
Implications of this case
In the context of the FW Act, a worker is bullied at work if an individual or group of individuals repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety. This is an objective test. The FW Act does not define ‘unreasonable behaviour’, although the Explanatory Memorandum to the FW Act states that it would include victimising, humiliating, threatening or intimidating. APY Inc was required to have a Code of Conduct in place, but although this is a basic precaution for workplaces, its effect on Boards was not discussed in this case. It might be advisable to have specific Board policies in place to guide the conduct of Board meetings, and ensure that they meet the requirements of legislation.
This document provides an overview of the Workmen's Compensation Act of 1923 in India. Some key points:
- The Act recognizes that workers injured on the job should be compensated. It applies to organized industries and hazardous occupations.
- Objectives include providing relief to injured workers or their dependents, establishing employer liability for workplace injuries, and ensuring compensation regardless of fault.
- Employers are liable for compensation for injuries caused by accidents or occupational diseases arising from employment. Compensation amounts depend on injury type and worker's wages.
- The Commissioner oversees claims and distribution of deposited compensation to dependents of deceased workers. Employers must pay compensation promptly or face penalties.
Stark Ltd produces compact discs for teaching Malay language. Mary, a senior employee, resigned with 3 years left on her contract and accepted a job with Wonderful Ltd in Brunei. Stark Ltd fears Mary took materials she developed for them, as well as their client list. They believe Mary is receiving payments from Wonderful Ltd. Stark Ltd's union has called a strike due to failed negotiations. Stark Ltd seeks equitable remedies.
- India's social security system includes various pension, health insurance, maternity, and disability programs, but it only covers a small portion of the population.
- The Employees' Provident Fund Organization is a major program that provides pensions and survivor benefits to around 35 million formal sector workers.
- The Employees' State Insurance Act provides medical care, cash sickness benefits, and death/disability payments for workers in firms with 10 or more employees.
- The Workmen's Compensation Act requires employers to pay benefits to workers injured or made ill by their jobs.
This document is a Supreme Court of India judgment regarding whether all entries in an employee's annual confidential report (ACR), or only adverse entries, must be communicated to the employee. The Court held that all entries, not just adverse entries, must be communicated so that the employee has an opportunity to make representations and request upgrades if they feel an entry is unjustified. Not communicating an entry was found to violate principles of natural justice and be arbitrary under Article 14 of the Constitution. Therefore, rules or policies stating only adverse entries need be communicated were found to be illegal.
Labour Laws Covered in Reforms
The Employee’s Compensation Act, 1923
The Industrial Disputes Act, 1947
The Minimum Wages Act, 1948
The Contract Labour (Regulation and Abolition) Act, 1970
The Payment Of Bonus Act, 1965
The Unorganized Worker Social Security Act, 2008
The Payment Of Gratuity Act, 1972
The Motor Transport Worker Act, 1961
The Beedi Cigar Worker’s (Condition Of Services) Act, 1966
The Equal Remuneration Act, 1976
The Factories Act, 1948
The Building And Other Construction Workers (Regulation Of Employment And Conditions Of Services) Act, 1996
Understanding Employment Act & Industrial Relation Act in MalaysiaAshraf Danish
This document summarizes key Malaysian labor laws including the Employment Act 1955, Industrial Relations Act 1967, and Trade Union Act 1959. The Employment Act 1955 covers matters like wages, working hours, leave, and maternity protection. The Industrial Relations Act 1967 aims to promote harmony between employers and employees by regulating their relations and preventing/settling disputes. It also governs trade union registration and rights. The collective bargaining process and legal requirements for picketing and strikes are also outlined.
ETHICS, LAW AND CORPORATE SOCIAL RESPONSIBILITY -
Malaysian Industrial – Labour Relation, SEXUAL HARASSMENT ISSUE, RETRENCHMENT ISSUE, IMPOSITION ISSUE
This document outlines the Labour Law of the United Arab Emirates, including definitions of key terms like "employer", "worker", "establishment", and "remuneration". It discusses regulations around the employment of workers, juveniles, and women. It also covers employment contracts, working hours and leaves, health and safety, disciplinary rules, termination of employment, labour accidents, disputes, and inspections. The document provides three chapters of definitions and overview before delving into specific sections and chapters on various aspects of labour law.
The document discusses the principle of vicarious liability under tort law. It provides examples where vicarious liability may arise such as between a principal and agent, partners in a firm, or a master and servant. The key aspects discussed include the relationship that must exist between the wrongdoer and the liable party, that the act must have occurred in the course of that relationship/employment, and the justification for imposing vicarious liability including deeper pockets of the employer to pay damages and encouraging accident prevention. It also provides a case example where a court held a municipal corporation vicariously liable for failure to properly barricade and sign a construction pit, even though work was contracted to others.
The Employees Compensation Act, 1923 extends to the whole of India and imposes liability on employers to provide compensation to employees who suffer work-related injuries or diseases. The Act was amended to change the title from the Workmen's Compensation Act to the Employees Compensation Act and replace references to "workmen" with "employees." It applies to various industries and seeks to provide quicker resolution of compensation claims compared to civil proceedings. Employers are liable to pay compensation for both occupational diseases and personal injuries covered under the Act that arise out of and in the course of employment. The amendments increased the minimum compensation limits for death and disablement.
The document discusses the definition of a "contract of service" and "employee" under Malaysian employment law. It provides an overview of factors that determine an employment relationship such as control tests, implied terms of a contract of employment, relevant legislation, and important court cases that have helped define these concepts. The control test, organization test, and implied duty of mutual trust and confidence are some key considerations examined in determining whether a worker is an employee under a contract of service.
This document discusses the concept of vicarious liability under tort law. It begins by defining vicarious liability as the liability of one person for the wrongful acts of another. It notes that for vicarious liability to apply, there must be a certain relationship between the parties, such as master-servant, principal-agent, etc. and the wrongful act must be connected to that relationship.
It then discusses some key relationships where vicarious liability typically arises, such as between a master and servant. It provides details on the master-servant relationship, explaining the rationale for holding the master liable for torts committed by servants in the course of their employment. It also distinguishes servants from independent contractors.
Finally
workmens compensation - gives insight on HR policiesjalajaAnilkumar
The Employees Compensation Act was amended in 1923 to expand coverage and increase compensation amounts. Key changes include replacing "workman" with "employee", adding clerks as covered workers, increasing minimum compensation for death to Rs. 1,20,000 and permanent disability to Rs. 1,40,000, and raising the maximum wage limit to Rs. 8,000 per month for compensation calculations. The Act provides compensation for work-related injuries, disabilities and diseases in a quick manner without needing civil proceedings.
The document discusses several Indian labour laws and legislation:
- The Employees' Compensation Act of 1923 provided compensation to workmen for injuries sustained during employment. It was a pioneering act that provided some social security.
- The Trade Unions Act of 1926 defined trade unions and regulated their formation and activities. It facilitated unionization in both organized and unorganized sectors.
- The Payment of Wages Act of 1936 regulated the payment, deductions, and recovery of wages to ensure they are paid correctly and on time. It prohibited unauthorized deductions from wages.
The document provides an overview of termination of employees laws and challenges in Malaysia presented by Miss Loh Sub Mui. It discusses:
- The rights of employers and employees. Employers have the right to promote, transfer, and determine workforce size while employees have rights to security, safe working conditions, and union participation.
- Key statutory provisions around termination from the Employment Act 1955 including requiring notice periods of 4-8 weeks depending on length of service and allowing termination without notice by paying indemnity.
- Challenges around proving just cause for termination such as misconduct, negligence, poor performance, and managing probationary periods. Proper documentation of warnings and opportunities for improvement is important.
Compensation under employees compensation actIshaan Savla
The document summarizes the key aspects of the Employee's Compensation Act 1923 in India. It outlines that the act provides compensation to employees for injuries sustained in the workplace. It details what types of injuries and circumstances qualify for compensation, including death, permanent or temporary disability. It also explains how compensation amounts are calculated based on factors like monthly wages and age, with examples provided. Relevant case law is also briefly discussed where the Supreme Court ruled an accident occurred during the course of employment and compensation was due.
This document provides an overview of the UAE Labour Law, including definitions, general provisions, rules around the employment of workers, children, and women. Some key points:
1) It establishes definitions for terms like employer, worker, employment contract, and occupational injury.
2) Certain categories of employees like government workers are excluded from the law's provisions.
3) It outlines rules for prioritizing national workers for jobs and obtaining work permits for non-nationals.
4) Children under 15 cannot be employed and rules are established for their maximum hours and types of permitted work.
5) Women generally cannot work at night and rules define night hours. Exceptions are provided for some roles.
Stark Ltd seeks to take legal action against Mary and Wonderful Ltd regarding Mary's resignation and employment with Wonderful Ltd.
For the first issue, Stark Ltd cannot seek specific performance to enforce the employment contract as contracts for personal services cannot normally be specifically enforced. However, Stark Ltd can seek an injunction to enforce the negative agreement prohibiting Mary from working for other companies for one year after leaving Stark Ltd.
For the second issue, Stark Ltd can seek an injunction to prevent Mary from taking materials she developed for Stark Ltd. An Anton Piller order may also be granted to search Mary and Wonderful Ltd's premises for these materials if Stark Ltd can show a strong case, potential damage, and the risk of evidence
Migrant workers in malaysia & protection under domestic lawnazuzila
The document discusses migrant worker rights and protections under Malaysian domestic law. It makes three key points:
1) Malaysian laws like the Constitution and Employment Act provide protections for both documented and undocumented migrant workers, guaranteeing them equal treatment and non-discrimination. However, in practice migrant workers face barriers in accessing justice systems.
2) While migrant workers have the legal right to join unions, some laws discriminate by prohibiting them from holding union leadership roles. Several laws also permit the "Foreign Workers First Out" discriminatory retrenchment policy.
3) Migrant workers need better support systems when pursuing legal claims to prevent employers from cancelling permits. The government should implement recommendations to allow workers to remain
The document is an offer letter from Thesis Scientist Pvt. Ltd to a new employee. It details the terms of employment including the job title and responsibilities, salary, benefits, probation period, confidentiality agreement, and other standard policies. Acceptance of the offer is subject to signing the letter and attached schedules which outline the job description, terms and conditions, and employee covenants regarding confidentiality and intellectual property.
Adamson and anangu pitjantjatjara yankunytjatjara inc fwc decisionFlint Wilkes
QUT Business School - The Australian Centre of Philanthropy and Non Profit Studies
Implications of this case
In the context of the FW Act, a worker is bullied at work if an individual or group of individuals repeatedly behaves unreasonably towards the worker and that behaviour creates a risk to health and safety. This is an objective test. The FW Act does not define ‘unreasonable behaviour’, although the Explanatory Memorandum to the FW Act states that it would include victimising, humiliating, threatening or intimidating. APY Inc was required to have a Code of Conduct in place, but although this is a basic precaution for workplaces, its effect on Boards was not discussed in this case. It might be advisable to have specific Board policies in place to guide the conduct of Board meetings, and ensure that they meet the requirements of legislation.
This document provides an overview of the Workmen's Compensation Act of 1923 in India. Some key points:
- The Act recognizes that workers injured on the job should be compensated. It applies to organized industries and hazardous occupations.
- Objectives include providing relief to injured workers or their dependents, establishing employer liability for workplace injuries, and ensuring compensation regardless of fault.
- Employers are liable for compensation for injuries caused by accidents or occupational diseases arising from employment. Compensation amounts depend on injury type and worker's wages.
- The Commissioner oversees claims and distribution of deposited compensation to dependents of deceased workers. Employers must pay compensation promptly or face penalties.
Stark Ltd produces compact discs for teaching Malay language. Mary, a senior employee, resigned with 3 years left on her contract and accepted a job with Wonderful Ltd in Brunei. Stark Ltd fears Mary took materials she developed for them, as well as their client list. They believe Mary is receiving payments from Wonderful Ltd. Stark Ltd's union has called a strike due to failed negotiations. Stark Ltd seeks equitable remedies.
- India's social security system includes various pension, health insurance, maternity, and disability programs, but it only covers a small portion of the population.
- The Employees' Provident Fund Organization is a major program that provides pensions and survivor benefits to around 35 million formal sector workers.
- The Employees' State Insurance Act provides medical care, cash sickness benefits, and death/disability payments for workers in firms with 10 or more employees.
- The Workmen's Compensation Act requires employers to pay benefits to workers injured or made ill by their jobs.
This document is a Supreme Court of India judgment regarding whether all entries in an employee's annual confidential report (ACR), or only adverse entries, must be communicated to the employee. The Court held that all entries, not just adverse entries, must be communicated so that the employee has an opportunity to make representations and request upgrades if they feel an entry is unjustified. Not communicating an entry was found to violate principles of natural justice and be arbitrary under Article 14 of the Constitution. Therefore, rules or policies stating only adverse entries need be communicated were found to be illegal.
Labour Laws Covered in Reforms
The Employee’s Compensation Act, 1923
The Industrial Disputes Act, 1947
The Minimum Wages Act, 1948
The Contract Labour (Regulation and Abolition) Act, 1970
The Payment Of Bonus Act, 1965
The Unorganized Worker Social Security Act, 2008
The Payment Of Gratuity Act, 1972
The Motor Transport Worker Act, 1961
The Beedi Cigar Worker’s (Condition Of Services) Act, 1966
The Equal Remuneration Act, 1976
The Factories Act, 1948
The Building And Other Construction Workers (Regulation Of Employment And Conditions Of Services) Act, 1996
Understanding Employment Act & Industrial Relation Act in MalaysiaAshraf Danish
This document summarizes key Malaysian labor laws including the Employment Act 1955, Industrial Relations Act 1967, and Trade Union Act 1959. The Employment Act 1955 covers matters like wages, working hours, leave, and maternity protection. The Industrial Relations Act 1967 aims to promote harmony between employers and employees by regulating their relations and preventing/settling disputes. It also governs trade union registration and rights. The collective bargaining process and legal requirements for picketing and strikes are also outlined.
ETHICS, LAW AND CORPORATE SOCIAL RESPONSIBILITY -
Malaysian Industrial – Labour Relation, SEXUAL HARASSMENT ISSUE, RETRENCHMENT ISSUE, IMPOSITION ISSUE
This document outlines the Labour Law of the United Arab Emirates, including definitions of key terms like "employer", "worker", "establishment", and "remuneration". It discusses regulations around the employment of workers, juveniles, and women. It also covers employment contracts, working hours and leaves, health and safety, disciplinary rules, termination of employment, labour accidents, disputes, and inspections. The document provides three chapters of definitions and overview before delving into specific sections and chapters on various aspects of labour law.
The document discusses the principle of vicarious liability under tort law. It provides examples where vicarious liability may arise such as between a principal and agent, partners in a firm, or a master and servant. The key aspects discussed include the relationship that must exist between the wrongdoer and the liable party, that the act must have occurred in the course of that relationship/employment, and the justification for imposing vicarious liability including deeper pockets of the employer to pay damages and encouraging accident prevention. It also provides a case example where a court held a municipal corporation vicariously liable for failure to properly barricade and sign a construction pit, even though work was contracted to others.
The Employees Compensation Act, 1923 extends to the whole of India and imposes liability on employers to provide compensation to employees who suffer work-related injuries or diseases. The Act was amended to change the title from the Workmen's Compensation Act to the Employees Compensation Act and replace references to "workmen" with "employees." It applies to various industries and seeks to provide quicker resolution of compensation claims compared to civil proceedings. Employers are liable to pay compensation for both occupational diseases and personal injuries covered under the Act that arise out of and in the course of employment. The amendments increased the minimum compensation limits for death and disablement.
The document discusses the definition of a "contract of service" and "employee" under Malaysian employment law. It provides an overview of factors that determine an employment relationship such as control tests, implied terms of a contract of employment, relevant legislation, and important court cases that have helped define these concepts. The control test, organization test, and implied duty of mutual trust and confidence are some key considerations examined in determining whether a worker is an employee under a contract of service.
This document discusses the concept of vicarious liability under tort law. It begins by defining vicarious liability as the liability of one person for the wrongful acts of another. It notes that for vicarious liability to apply, there must be a certain relationship between the parties, such as master-servant, principal-agent, etc. and the wrongful act must be connected to that relationship.
It then discusses some key relationships where vicarious liability typically arises, such as between a master and servant. It provides details on the master-servant relationship, explaining the rationale for holding the master liable for torts committed by servants in the course of their employment. It also distinguishes servants from independent contractors.
Finally
workmens compensation - gives insight on HR policiesjalajaAnilkumar
The Employees Compensation Act was amended in 1923 to expand coverage and increase compensation amounts. Key changes include replacing "workman" with "employee", adding clerks as covered workers, increasing minimum compensation for death to Rs. 1,20,000 and permanent disability to Rs. 1,40,000, and raising the maximum wage limit to Rs. 8,000 per month for compensation calculations. The Act provides compensation for work-related injuries, disabilities and diseases in a quick manner without needing civil proceedings.
The document discusses key aspects of the Workmen's Compensation Act of 1923 in India. It aims to provide (1) financial protection to workmen and dependents in cases of accidental injury by requiring employers to pay compensation. It defines important terms like commissioner, dependent, employer, disablement and wages. It also outlines (2) an employer's liability to compensate employees for death, injury or disease from accidents arising from work and (3) conditions for receiving compensation for personal injury or occupational diseases.
The document discusses the doctrine of common employment in England. Some key points:
1. The doctrine was established in 1837 and held that a master was not liable for injuries caused by one servant to another in the course of their employment.
2. It was developed through several court cases to include elements like both servants working for the same master.
3. The doctrine protected masters from liability but was criticized for infringing on workers' rights. Several exceptions and laws were later introduced to mitigate the harsh effects.
4. By the late 19th century the doctrine shifted more in favor of workers through exceptions for breach of statutory duty and limitations to the defense of volenti non fit injuria (consent).
The document summarizes the key aspects of the Employees' Compensation Act 1923 in India.
The Act provides compensation to workmen for injuries suffered in work-related accidents, regardless of fault. It abolished defenses previously available to employers like assumed risk, common employment, and contributory negligence. Compensation is provided for both occupational diseases and personal injuries arising out of and in the course of employment. The Act defines important terms like wages, dependents, disablement and employers' liability in case of contractors. It aims to provide timely relief to injured workmen.
The document discusses the Workmen's Compensation Act of 1923 in Bangladesh. It provides compensation to workers who are injured or disabled in the course of their employment. The act aims to financially protect workers and their dependents in cases of accidental workplace injuries. It discusses the types of compensation provided, including compensation for death, permanent total disability, and permanent partial disability. It also discusses factors like medical benefits, temporary disability benefits, and permanent disability benefits as outlined in the act.
The Workmen's Compensation Act, 1923 provides financial protection to workmen and their dependents in cases of work-related injuries or death. The Act defines key terms including workman, employer, dependant, disablement and wages. It also covers contractors and their liability. The employer is liable to pay compensation for death, permanent or temporary disablement due to employment injuries that arose during or because of one's work. Certain conditions and principles like doctrine of notional extension apply for determining liability. The Act also covers occupational diseases contracted from hazardous work.
Keith SrakocicAssociated PressIssues in EmploymentUni.docxDIPESH30
Keith Srakocic/Associated Press
Issues in Employment
Unit VI
Chapter 21 Establishing the Employment Relationship
In this chapter you will:
• Identify the unique characteristics and liabilities of different categories of workers.
• Understand how respondeat superior and negligent hiring affect an employer’s
liability.
• Identify major legislation that governs employment–management relations.
sea80373_21_c21_287-306.indd 1 10/4/12 3:27 PM
Chapter 22 Introduction to Antidiscrimination Law
In this chapter you will:
• Understand the Commerce Clause and the Affectation Doctrine and the role of each
in enforcing antidiscrimination law.
• Understand the major components to a discrimination lawsuit, what each party
needs to prove, and their respective burdens of proof.
Chapter 23 Discrimination on the Basis of Race
In this chapter you will:
• Understand the application of Title VII to race discrimination and how it impacts
business.
• Identify steps that a manager can take to avoid race discrimination lawsuits.
Chapter 24 Discrimination on the Basis of Sex
In this chapter you will:
• Understand the application of Title VII to sex discrimination and how it impacts
business.
• Identify other key legislation related to discrimination based on sex.
Chapter 25 Sexual Harassment
In this chapter you will:
• Distinguish between different forms of sexual harassment.
• Understand what an employer’s liability is in sexual harassment cases.
Chapter 26 Other Types of Discrimination
In this chapter you will:
• Understand the application of Title VII to religious discrimination and how it
impacts business.
• Understand the application of Title VII to discrimination based on national origin
and how it impacts business.
• Understand the provisions of federal legislation that cover discrimination based on
disability and age.
• Identify examples of discrimination against nonprotected classes.
sea80373_21_c21_287-306.indd 2 10/4/12 3:27 PM
Establishing the
Employment Relationship 21
In thinking about setting up a business, you may have considered that all workers are classified as employees, but this is not true. There are, in fact, numerous forms that an employer–employee relationship can take or transform into. This chapter begins with those types of relationships and
examines the liability that can result from each. It will then look at some of the major labor law leg-
islation from the 20th century.
21.1 Employer–Employee Relationship
When an employer hires someone to work, the likelihood is that person will be categorized as an employee. Many students are unaware that the worker could actually be categorized in numerous ways: as an employee, an agent, or a servant. Some workers are not employ-
ees at all, but rather independent contractors (see Table 21.1). Each one of these types of workers
has unique characteristics and liabilities.
What makes someone an employee? It is well settled in law that employees ha ...
The document defines a worker under Western Australian law as having both a primary and extended definition. The primary definition covers employees who work under a contract of service or apprenticeship, including those who work for wages or salary and have set hours, a single employer, and supervision. The extended definition more broadly covers contractors and subcontractors paid by piece rates, hourly rates, or per job who may have multiple employers and work unsupervised. Contractors and subcontractors may be considered workers if they are engaged to do work for a business and paid for their personal labor services. Employers are responsible for covering such workers and any subcontracted workers under their workers' compensation insurance.
This document is an assignment on legal aspects of business submitted by Anurag Verma. It contains short notes on indemnity, guarantee, bailment and pledge. For indemnity, it discusses the key elements of an indemnity contract under Indian law and the rights of an indemnity holder. Guarantee is defined as a contract to perform or discharge the liability of a third party in case of default. The essential differences between bailment and pledge are explained. Examples are also provided for indemnity, guarantee, bailment and pledge.
The document discusses key aspects of the Workmen's Compensation Act, 1923 including:
1) It aims to provide financial protection to workmen and their dependents in case of accidental injury by means of compensation paid by employers.
2) It defines important terms like commissioner, dependent, employer, disablement, wages, and workman.
3) It outlines the process for claiming and determining compensation in cases of death, permanent or temporary disability resulting from employment-related accidents or occupational diseases.
Vicarious liability holds employers responsible for acts committed by employees. It is based on principles like "he who acts through another acts himself" and "let the principal be responsible for the acts of their agent." Vicarious liability arises from special relationships like employer-employee where the employee's tortious acts, committed in the course of employment, make the employer jointly and severally liable.
The Workmen's Compensation Act of 1923 is a social security legislation that imposes statutory liability on employers to provide compensation to employees who suffer work-related injuries or diseases. It seeks to provide cheaper and quicker resolution of compensation claims than through civil courts. The employer is liable to pay compensation in cases of occupational disease, personal injury, or death of an employee that arises out of or in the course of employment. Compensation is based on loss of wages rather than expenses incurred and can be claimed by the injured employee or their dependents in case of death. Certain situations like willful disobedience or being under the influence exempt the employer from liability.
This document discusses insurance issues related to "hired in" or contract labor. It explains that hired in workers are typically employees of the labor hire firm, not the host employer, though the host employer directs their work. Both the labor hire firm and host employer need certain insurance policies to cover risks from hired in workers, such as workers' compensation, liability insurance, and policies covering the workers' use of vehicles. The document also discusses how liability is typically apportioned between the labor hire firm and host employer in the event of an injury or damage claim involving a hired in worker.
This document discusses the concept of mut'ah or consolatory gifts given by husbands to wives after divorce according to Islamic law and practices in various countries. It defines mut'ah and provides evidence from the Quran and hadith that it is compulsory under certain conditions. It examines how mut'ah is addressed in the laws and courts of Malaysia, Bangladesh, and Indonesia. Issues around high claims for mut'ah amounts and payments beyond the iddah period are also covered. The conclusion emphasizes that mut'ah should be a consolatory gift based on the husband's means and agreed by both parties to avoid it being treated like compensation.
This document discusses hearsay evidence and exceptions to the hearsay rule. It begins by defining hearsay as out-of-court statements offered to prove the truth of the matter asserted. Hearsay is generally inadmissible due to issues with reliability. Exceptions allow certain hearsay statements, including dying declarations where the declarant is unavailable due to death. The document also discusses different forms of hearsay such as oral, written, and conduct, and exceptions like res gestae and statements of unavailable persons under Section 32 of the Evidence Act 1950. It concludes by mentioning the current issue of potentially abolishing the hearsay rule.
This document provides an overview of paternity leave policies and laws in various countries. It begins by defining paternity leave as a short period of leave for fathers after childbirth. It then discusses international standards from organizations like the ILO and UNICEF encouraging countries to implement paid paternity leave. Laws in the UK and Singapore are examined in depth, outlining eligibility requirements, duration of leave, and job security protections. The document aims to analyze and compare approaches to paternity leave internationally.
Maslahah refers to public interest or general benefit in Islamic law. It is a method used by Muslim jurists to derive rulings on issues not explicitly addressed in the Quran or hadith. There are different types and classifications of maslahah. While some jurists like Malikis and Hanbalis approve of maslahah if certain conditions are met, others like Shafi'is are more restrictive in its application. Historically, maslahah was used by early Muslim leaders and caliphs to address new issues and it continues to be applied in modern contexts involving areas like banking, family law, and medicine when no clear religious text provides guidance.
The document discusses the goals of punishment in relation to the death penalty. It analyzes whether the death penalty achieves the goals of retribution, deterrence, incapacitation, rehabilitation, and restoration. It also provides an overview of the death penalty in Malaysia, including the offenses that carry the death penalty and recent proposals to reform it. While the death penalty can achieve retribution and deterrence, its ability to further incapacitation and rehabilitation is debated. Restoration is incompatible with the death penalty. The document concludes by noting public support for the death penalty in Malaysia but acknowledges reforms remain at the government's discretion.
The document discusses the concept of punishment from an abolitionist perspective compared to an Islamic perspective. The abolitionist view is that punishment should be abolished and instead offenders should be reformed through probation, restorative justice practices that focus on compensating victims rather than punishing offenders. The Islamic view is similar in that it encourages forgiveness between victims and offenders and restorative practices like compensation, with the caveat that some serious crimes may still require legal punishment. Overall both views emphasize forgiveness, reconciliation, and restorative solutions over harsh punishments.
This document provides an introduction and outline for a research paper on stateless children in Malaysia. It begins with background on the problem of stateless children in Malaysia, estimated at 300,000. The objectives are to address this issue, compare Malaysia's approach to other countries, and identify solutions. Research questions are posed. The methodology will involve literature review and interviews. A literature review identifies sources that discuss the lack of rights stateless children face. The paper will conduct a comparative study to examine good practices of other countries to inform recommendations for Malaysia.
This document discusses significant developments in prescribing the age of marriage in common law jurisdictions and Islamic law. It examines the minimum age of marriage in Malaysia, the UK, Pakistan, Bangladesh, Indonesia, and under Islamic law according to its four main schools. Most countries have increased the minimum age to 18 for both sexes or enacted laws against forced marriage. However, child marriage remains an issue, especially in Pakistan and Bangladesh. The document concludes by stating that based on evidence that child marriage is harmful, Islamic law principles allow restricting or abolishing it.
This document discusses whether Malaysia can be considered an Islamic state. It begins by providing background on Islam and the concept of an Islamic state. It then defines key terms like "state" and discusses perspectives on the state from Western and Islamic sources. The document notes there are differing views on what constitutes an Islamic state, but it generally refers to a ruling authority that implements Sharia law. It also explains Islamic constitutional law is based on Quran, Hadith and consensus of scholars. While Malaysia has Muslim majority, it may not fully qualify as an Islamic state since it does not apply all Islamic provisions in its constitution. The question of what form an Islamic state should take remains open to debate.
This document discusses the two types of conditions that can be imposed on lands alienated by the State Authority under Section 5 of the National Land Code:
1. Express conditions - These are conditions that are clearly spelled out and endorsed on the document of title. They apply specifically to that particular land.
2. Implied conditions - These relate to the category of land use and are laid down in Sections 114-118 of the NLC. They apply to the extent they are not inconsistent with any express conditions. Examples include only allowing buildings for agricultural purposes on agricultural land.
A breach of either type of condition can result in forfeiture of the land under Section 127.
Dokumen tersebut membahasakan solusi untuk konflik fatwa di Malaysia. Beberapa faktor yang menyebabkan konflik fatwa dijelaskan seperti perbedaan metodologi dan pemahaman antar badan fatwa di setiap negara bagian. Ringkasannya, solusi yang disarankan adalah memperkuat peran badan fatwa nasional, membentuk satuan khusus untuk menegakkan fatwa, dan meningkatkan sosialisasi fatwa ke masyarakat.
This document discusses the concept of al-Kharaj in Islam. It begins by defining al-Kharaj as taxes, revenue, or rental obtained from land or property. It describes how al-Kharaj was implemented during the Prophet's time and the early Caliphates. Factors that determined the amount of al-Kharaj included the quality of land, type of crops planted, and watering system. The document also examines different views on rights of non-Muslim land holders and the functions of al-Kharaj as an official tax document and source of government revenue.
The case involved Lina Joy, a Muslim woman who sought to change her name and remove any reference to Islam from her identity card without obtaining approval from the Shariah court. The court dismissed her application, ruling that:
1) While Article 11 of the Malaysian Constitution guarantees freedom of religion, this does not provide absolute freedom to choose or change one's religion, especially for Muslims.
2) Article 11 must be read together with other provisions that recognize Islam as the dominant religion and grant religious authorities power over Muslim religious affairs.
3) As a Muslim, Lina Joy's decision to renounce Islam must be determined by the Shariah court in accordance with Islamic law, not civil courts.
Handout noor jahan v md yusofff case reviewSnj SNj
The plaintiff claimed 47,001 shares registered in her ex-husband's name were held in trust for her as she purchased them. The ex-husband argued the Syariah Courts had exclusive jurisdiction. The High Court held that the shares were purchased solely with the plaintiff's money, so it was not a division of marital property under the Administration of Muslim Law Act. It also held the plaintiff's claim of a resulting trust was unrelated to Muslim religious affairs, so the civil courts had jurisdiction to hear the case.
Alienation refers to the act of transferring possession of state land from the state authority to another person or body. Under the National Land Code 1965, the state authority can alienate land for up to 99 years by granting ownership rights, subject to payment of land revenue. The key effects of alienated land include the proprietor obtaining a title to the land and secured rights to develop and invest in the land for a long period. However, the proprietor must adhere to any express or implied conditions relating to the permitted land use. Overall, alienation allows the state to dispose of land while providing proprietors certain benefits and long-term security over the land.
Gender and Mental Health - Counselling and Family Therapy Applications and In...PsychoTech Services
A proprietary approach developed by bringing together the best of learning theories from Psychology, design principles from the world of visualization, and pedagogical methods from over a decade of training experience, that enables you to: Learn better, faster!
Level 3 NCEA - NZ: A Nation In the Making 1872 - 1900 SML.pptHenry Hollis
The History of NZ 1870-1900.
Making of a Nation.
From the NZ Wars to Liberals,
Richard Seddon, George Grey,
Social Laboratory, New Zealand,
Confiscations, Kotahitanga, Kingitanga, Parliament, Suffrage, Repudiation, Economic Change, Agriculture, Gold Mining, Timber, Flax, Sheep, Dairying,
This presentation was provided by Racquel Jemison, Ph.D., Christina MacLaughlin, Ph.D., and Paulomi Majumder. Ph.D., all of the American Chemical Society, for the second session of NISO's 2024 Training Series "DEIA in the Scholarly Landscape." Session Two: 'Expanding Pathways to Publishing Careers,' was held June 13, 2024.
This document provides an overview of wound healing, its functions, stages, mechanisms, factors affecting it, and complications.
A wound is a break in the integrity of the skin or tissues, which may be associated with disruption of the structure and function.
Healing is the body’s response to injury in an attempt to restore normal structure and functions.
Healing can occur in two ways: Regeneration and Repair
There are 4 phases of wound healing: hemostasis, inflammation, proliferation, and remodeling. This document also describes the mechanism of wound healing. Factors that affect healing include infection, uncontrolled diabetes, poor nutrition, age, anemia, the presence of foreign bodies, etc.
Complications of wound healing like infection, hyperpigmentation of scar, contractures, and keloid formation.
🔥🔥🔥🔥🔥🔥🔥🔥🔥
إضغ بين إيديكم من أقوى الملازم التي صممتها
ملزمة تشريح الجهاز الهيكلي (نظري 3)
💀💀💀💀💀💀💀💀💀💀
تتميز هذهِ الملزمة بعِدة مُميزات :
1- مُترجمة ترجمة تُناسب جميع المستويات
2- تحتوي على 78 رسم توضيحي لكل كلمة موجودة بالملزمة (لكل كلمة !!!!)
#فهم_ماكو_درخ
3- دقة الكتابة والصور عالية جداً جداً جداً
4- هُنالك بعض المعلومات تم توضيحها بشكل تفصيلي جداً (تُعتبر لدى الطالب أو الطالبة بإنها معلومات مُبهمة ومع ذلك تم توضيح هذهِ المعلومات المُبهمة بشكل تفصيلي جداً
5- الملزمة تشرح نفسها ب نفسها بس تكلك تعال اقراني
6- تحتوي الملزمة في اول سلايد على خارطة تتضمن جميع تفرُعات معلومات الجهاز الهيكلي المذكورة في هذهِ الملزمة
واخيراً هذهِ الملزمة حلالٌ عليكم وإتمنى منكم إن تدعولي بالخير والصحة والعافية فقط
كل التوفيق زملائي وزميلاتي ، زميلكم محمد الذهبي 💊💊
🔥🔥🔥🔥🔥🔥🔥🔥🔥
RHEOLOGY Physical pharmaceutics-II notes for B.pharm 4th sem students
Tutorial il ot vl & trespass
1. 1.
Vicarious liability can be defined as the liability imposed on one person for the tortious act or
omission of another which causes loss to a third party.
The issue identify in the problem given is whether A, the general permananent manager of B
will vicariously liable to C.
In order to establish the liablity, firstly we need to determine, B falls under which type of
employees. Employee means the one who rents out his self (labour). It should be noted that
the Muslim jurists have categorized employee into two, which are Ajir khass (private
employee) and Ajir Mushtarak ( Independent Contractor).
Ajir khass (private employee) means a person working for another for a definite time and for
a specific work or a person taken on hire to work for the hirer alone, not for another person
(contract of service) His wages are due if he is ready to work during the period which his
services are hired. But, if he declines to do the work, he is not entitled to his wages. He also
would not be liable for any damage which occurred without his own fault in the course of his
duty because he is a trustee (amin). This is due to the fact that he has submitted himself and
made himself available for the job which was for the benefit of his employer.
Where as Ajir Mushtarak ( Independent Contractor) means a person who is hired, who is not
restricted by the condition that he is not to work for anyone other than the hirer and his wages
are paid when the work is done (contract for service). For instance, clockmaker, jewelers, cab
drivers and others. He is entitled to have his wages for his service to his customer.It is also
define as a person who entered into a contract with others (customers/employers) in doing a
specific work or in doing a work for a period but the employer is not entitled to have his
service for the whole period which means that the hired person may also give his service to
others that period.
There are conditions that must be satisfied in order to prove vicarious liability. Firstly, there
must be a contract(‘Aqd) between the Employer and the Employee. This condition has been
absorbed from the definition of ajir khass mentioned by Ibn Qudamah who says that ajir khass
is a person who makes a contract on himself for a definite time, and an employer is entitled to
get benefit from him for the whole period of time.
2. In the Majallah, the word of (contract) has also been put forward so as to highlight and show
that the contract is an important element which should exist between an employer and an
employee. Section 423 of the Majallah enacted the person employing a private employee may
be one single individual or several persons contemplated as one individual only.
Consequently, when the inhabitants of a village hire the services of a shepherd for themselves
alone by means of a single contract, such shepherd becomes a private employee.
Secondly, wrongful or tortious act resulting from the acts of an Employee. It is noteworthy,
that the wrongful acts of an employee could exist in two situations. First, wrongful acts occur
in a situation where the employee is working on the property of his employer under the terms
of the contract between them, and second, wrongful acts occur in situations where the
employee is working on the property of a third party on the contract between him and his
employer. In both situations of contract of service if he caused any damage upon the property
of another person or any injury upon any person in the course of the employment without any
ta’addi(transgression/trespass) or negligence.
This is illustrated in the case of Century Insurance Co. v. Northern Ireland Road Transport
Board (1942) A.C. 509, where a tortious act of a petrol tanker driver caused an explosion
which wrecked the garage and nearby houses. His employer was vicariously liable for the
damage as it happened in the course of the petrol tanker driver’s employment.
Thirdly, the occurrence of an injury(Darar) to a third party while acting in the course of
employement in an intra vires activity.Wahbah al-Zuhayli says, the employer is responsible
for any work of his employee when between them there existed a contract of hire (‘aqd
ijarah), and the injury (darar) occurs on account of the employee in the course of his work.
For example in the course of his employment where the equipment, the place and the method
of the work are in accordance with normal practice, or the employer ordered them explicitly
or implicitly; if these two condition are not confirmed, the employer is not liable.
The employer is therefore liable only for damage caused by the act of his employee where the
act is within the scope of duties imposed upon him.This condition is extracted from the
classical manuscripts of the Muslim jurists. A famous manuscript Al-Hidayah subscribes to
the underlying condition by saying that, it is not liable upon ajir khass for anything which is
damaged in his possession (fi yadih) (without his contributory act) and he is also not liable for
anything damaged resulting from his act (min ‘amalih).
3. Al-Babarti elaborates the words above “…anything damaged resulting from his act (min
‘amalih)” by examples such as work equipments broken in the course of the employee’s
employment (fi ‘amalih). The word fi ‘amalih which is used by al-Babarti in his elaboration
clarifies ‘in the course of employment” and it has been accepted by the contemporary Muslim
jurists in order to be a condition in the discussion of vicarious liability regarding employer
and employee. Hence, the words of the Muslim jurists, namely min ‘amalih or bi ’amalih of fi
‘amalih or fi yadih are equivalent to “in the course of employment”.
Ibn ‘Abidin uses bi ‘amalih in the context of the “the work which is permitted to be done” and
if the employee does something which is outside the command, he himself would be liable for
anything that happens, not his employer. This could be regarded as outside the course of
employment.
For example, if an ajir khass lit a lamp complying with the command of his employer, and the
lamp dropped and singed or oiled the cloth in the fuller’s work (thiyab al-qisarah), the liability
is not upon the ajir khass, but is vicariously upon his employer or master because lighting the
lamp is an authorized work (bi idhnih) for a fuller, but if the lamp dropped and it singed the
cloth other than the cloth in the fuller’s work, the liability is upon the ajir khass because he
engages in an ultra vires activity without express authority. This is outside the course of his
employment.
Similarly, when an employee (ajir or tilmidh) in the fullerwork makes a pounding and causes
damage to the cloth, the employer(ustadh) is vicariously liable because pounding is part of the
work of a fuller, and thus liability is ascribed to him. On the other hand, where the pounding
of the fuller causes a damage to a cloth other than the cloth which is commanded by the
employer, the liability is upon the employee, because the act upon the other cloth is not
authorized or is an ultra vires activity. The act is regarded as outside the course of his
employment.
This is supported by the case of Poland v. Parr (1927) 1 K.B. 236 where an employee saw a
boy stealing sugar which belonged to his employer from the sugar carts. He struck the boy
who consequently fell under the cart and was injured. The defendant(the employer) was held
liable for the act of his employee even though the employee’s act falls within the course of his
employment and it could be regarded as impliedly allowed by his employer on account of
protecting his property.
4. Fourthly, the tortious act which happens in the work of an employee is done for the benefit of
his employer.The contract made between an employee and an employer, warrants the
employee to give his service for the benefit of the employer. For liability to fall upon the
employee himself, it is necessary that his act has profited him personally, not his employer.
An employee is a person who has been employed by his employer to work for himself. This is
the definition of the employee, who has submitted himself and made himself available for the
job which was for the benefit of his employer. It means that he would not be liable for any
damage which occurred without his own fault in the course of his duty because he is regarded
as a trustee (amin), and working with the permission of the owner of the property (employer).
The reason for the liability of the employer concerned with the injury which is done by his
employee is that his employee is his authorized representive (na’ib/niyabah). Hence, his
tortious action is as if the employer had caused the loss or damages himself. At the same time,
the employer alone owns the benefits gained by the employee. Therefore, the fault of the
employee is the fault of the employer, because he (the employer) is the guarantor (damin) or
surety (kafil) for the employee. That the service of the employees belongs exclusively to the
employer, and the liability belongs to him on behalf of his employee could be summarized in
the maxim: “Liability is an obligation accompanying gain”. That is to say, a person who
enjoys the benefits of a thing must submit to the disadvantage attaching thereto. Further, there
is another maxim to this effect derived from the Majallat al-Ahkam al-‘Adliyyah: “Benefit
follows responsibility”. That is to say, the enjoyment of a thing is the compensation factor for
any liability attaching thereto.
It is clear that Islamic law subscribes to the underlying principle of vicarious liability of an
employer; that is a person who employs others to work for him and then he gets benefits from
their works, is liable for any damage caused by his employees in the course of their
employment or of carrying out their employer’s business and work. For example, if an
employer ordered his employee to dig a well on his land and the employee has done it in
complying with that order, and then a person fell into it, the liability would be borne by the
employer. This is because the work is done by the employee for the benefit of the employer or
the one who ordered it. He is regarded as a person who has legal power to get benefits from
his land (wilayat al-intifa’).
5. In the case of Zakaria b. Che Soh v. Chooi Kum Loong & Anor (1986) 1 M.L.J. 324. In this
case, the plaintiff has worked as a driver for a research institute in Ipoh. An accident
happened on the way back to his home for lunch after finishing his task to send his director
back to his home. It was held that even though the driver was doing something for his own
benefit but his act at that time was within the course of his employment. Thus, his employer
(the State Government) was vicariously liable.In brief, if a work is done for the employer’s
business, it is usually done in the course of employment, even though it is a prohibited act. If
it is done not for the employer’s benefit, even if not for the benefit of the employee himself, it
is regarded as outside the course of the employment
Lastly, the job which the employee gives his service is lawful and legal. It is necessary that
the job in which the employee gives his services to his employer is lawful (mashru’) and the
employer has ordered him to do it implicitly (sarahah aw dimnan). It means that the Islamic
law of tort requires the employee to execute his employer’s orders provided that they are not
unlawful.
Thus if the commanded act concerns another person’s property, the command will be null and
void because Islamic law does not permit anyone to exercise any action on another person’s
property without his consent. And in any situation where the command is void, the
commander shall not be responsible, as the Muslim jurists have theorized that: anything
forbidden to be done, is also forbidden for its performance to be requested. Therefore the
request is regarded as invalid.
Consequently, if a person commands another person to get hold of another person’s property
illegally, the person who gets hold of the other property is liable by virtue of the fact that the
command from the first person is invalid. Hence, in any situation that the command is invalid,
the liability will not be borne by the commander.
In some cases, the employee would be held liable if he had inflicted damage on the property
of a third through the command of his employer. He will be entitled to compensation from his
employer if he did not know that the act is unlawful and illegal.
For example, the case where the employer commands his employee to make a door on another
person’s wall or to dig a well on a highway. The employer will definitely be liable for any
damage resulting from the acts of his employee. In the aforesaid cases, the employer is in the
position of vicarious liability.
6. However, if the employee does his jobs commanded by his employer in awareness that those
jobs are unlawful and illegal, the liability will be upon him, not upon his employer. For
example, in the case where the employer orders his employee to dig a well on a highway and
he is aware that his action is unlawful and illegal, he should be held liable for any damage that
may arise.
In brief, the Islamic law of tort puts this condition in mind before making any decision on
liability. It can be said that to implement this condition and to make the decision on liability is
a question of fact. Consequently, the Court should look at a case as a whole before making
any decision. In islam, if the employee does the job which is unlawful or expressly prohibited
by the employer, the employer will not be liable for any liability resulting from the acts of his
employee.
In Islam, if either one of the two elements could be proved, the employer will not be liable,
firstly, the job which is done by the employee is outside the course of employment, or the
employee does his job in a negligent manner.
By applying to the given question, B is regarded as contract for service, ajir mushtarak, with
X and under contract of service, ajir khass with A. The general rule is that the first employer
will be vicariously liable for the tort committed by his employee which had been lent to
second employer unless the first employer divested himself of all possession and control. In
fact the elements are also fulfilled. Therefore, A will be vicariously liable for the tort
committed by his employer B.
To conclude, employer will be liable for the tort committed by the employee (ajir khass)
eventhough he is negligent under the condition of during the course of employement.
2.
Vicarious liability can be defined as the liability imposed on one person for the tortious act or
omission of another which causes loss to a third party. This is line with one of the latin legal
maxims, qui facit per alium facit per se, which means he who does thing by an action of
another effectively doe it himself.
The issue identify in the problem given is whether Karim, who is the owner of the hospital
will vicariously liable to Elyas for the tort committed by Adli?
7. In order to establish the liablity, firstly we need to determine, Adli falls under which type of
employees. Employee means the one who rents out his self (labour). It should be noted that
the Muslim jurists have categorized employee into two, which are Ajir khass (private
employee) and Ajir Mushtarak ( Independent Contractor).
Ajir khass (private employee) means a person working for another for a definite time and for
a specific work or a person taken on hire to work for the hirer alone, not for another person
(contract of service) His wages are due if he is ready to work during the period which his
services are hired. But, if he declines to do the work, he is not entitled to his wages. He also
would not be liable for any damage which occurred without his own fault in the course of his
duty because he is a trustee (amin). This is due to the fact that he has submitted himself and
made himself available for the job which was for the benefit of his employer.
Where as Ajir Mushtarak ( Independent Contractor) means a person who is hired, who is not
restricted by the condition that he is not to work for anyone other than the hirer and his wages
are paid when the work is done (contract for service). For instance, clockmaker, jewelers, cab
drivers and others. He is entitled to have his wages for his service to his customer.It is also
define as a person who entered into a contract with others (customers/employers) in doing a
specific work or in doing a work for a period but the employer is not entitled to have his
service for the whole period which means that the hired person may also give his service to
others that period.
There are conditions that must be satisfied in order to prove vicarious liability. Firstly, there
must be a contract(‘Aqd) between the Employer and the Employee. This condition has been
absorbed from the definition of ajir khass mentioned by Ibn Qudamah who says that ajir khass
is a person who makes a contract on himself for a definite time, and an employer is entitled to
get benefit from him for the whole period of time.
In the Majallah, the word of (contract) has also been put forward so as to highlight and show
that the contract is an important element which should exist between an employer and an
employee. Section 423 of the Majallah enacted the person employing a private employee may
be one single individual or several persons contemplated as one individual only.
Consequently, when the inhabitants of a village hire the services of a shepherd for themselves
alone by means of a single contract, such shepherd becomes a private employee.
8. Secondly, wrongful or tortious act resulting from the acts of an Employee. It is noteworthy,
that the wrongful acts of an employee could exist in two situations. First, wrongful acts occur
in a situation where the employee is working on the property of his employer under the terms
of the contract between them, and second, wrongful acts occur in situations where the
employee is working on the property of a third party on the contract between him and his
employer. In both situations of contract of service if he caused any damage upon the property
of another person or any injury upon any person in the course of the employment without any
ta’addi(transgression/trespass) or negligence.
This is illustrated in the case of Century Insurance Co. v. Northern Ireland Road Transport
Board (1942) A.C. 509, where a tortious act of a petrol tanker driver caused an explosion
which wrecked the garage and nearby houses. His employer was vicariously liable for the
damage as it happened in the course of the petrol tanker driver’s employment.
Thirdly, the occurrence of an injury(Darar) to a third party while acting in the course of
employement in an intra vires activity.Wahbah al-Zuhayli says, the employer is responsible
for any work of his employee when between them there existed a contract of hire (‘aqd
ijarah), and the injury (darar) occurs on account of the employee in the course of his work.
For example in the course of his employment where the equipment, the place and the method
of the work are in accordance with normal practice, or the employer ordered them explicitly
or implicitly; if these two condition are not confirmed, the employer is not liable.
The employer is therefore liable only for damage caused by the act of his employee where the
act is within the scope of duties imposed upon him.This condition is extracted from the
classical manuscripts of the Muslim jurists. A famous manuscript Al-Hidayah subscribes to
the underlying condition by saying that, it is not liable upon ajir khass for anything which is
damaged in his possession (fi yadih) (without his contributory act) and he is also not liable for
anything damaged resulting from his act (min ‘amalih).
Al-Babarti elaborates the words above “…anything damaged resulting from his act (min
‘amalih)” by examples such as work equipments broken in the course of the employee’s
employment (fi ‘amalih). The word fi ‘amalih which is used by al-Babarti in his elaboration
clarifies ‘in the course of employment” and it has been accepted by the contemporary Muslim
jurists in order to be a condition in the discussion of vicarious liability regarding employer
and employee. Hence, the words of the Muslim jurists, namely min ‘amalih or bi ’amalih of fi
‘amalih or fi yadih are equivalent to “in the course of employment”.
9. Ibn ‘Abidin uses bi ‘amalih in the context of the “the work which is permitted to be done” and
if the employee does something which is outside the command, he himself would be liable for
anything that happens, not his employer. This could be regarded as outside the course of
employment.
For example, if an ajir khass lit a lamp complying with the command of his employer, and the
lamp dropped and singed or oiled the cloth in the fuller’s work (thiyab al-qisarah), the liability
is not upon the ajir khass, but is vicariously upon his employer or master because lighting the
lamp is an authorized work (bi idhnih) for a fuller, but if the lamp dropped and it singed the
cloth other than the cloth in the fuller’s work, the liability is upon the ajir khass because he
engages in an ultra vires activity without express authority. This is outside the course of his
employment.
Similarly, when an employee (ajir or tilmidh) in the fullerwork makes a pounding and causes
damage to the cloth, the employer(ustadh) is vicariously liable because pounding is part of the
work of a fuller, and thus liability is ascribed to him. On the other hand, where the pounding
of the fuller causes a damage to a cloth other than the cloth which is commanded by the
employer, the liability is upon the employee, because the act upon the other cloth is not
authorized or is an ultra vires activity. The act is regarded as outside the course of his
employment.
This is supported by the case of Poland v. Parr (1927) 1 K.B. 236 where an employee saw a
boy stealing sugar which belonged to his employer from the sugar carts. He struck the boy
who consequently fell under the cart and was injured. The defendant(the employer) was held
liable for the act of his employee even though the employee’s act falls within the course of his
employment and it could be regarded as impliedly allowed by his employer on account of
protecting his property.
Fourthly, the tortious act which happens in the work of an employee is done for the benefit of
his employer.The contract made between an employee and an employer, warrants the
employee to give his service for the benefit of the employer. For liability to fall upon the
employee himself, it is necessary that his act has profited him personally, not his employer.
An employee is a person who has been employed by his employer to work for himself. This is
the definition of the employee, who has submitted himself and made himself available for the
job which was for the benefit of his employer. It means that he would not be liable for any
10. damage which occurred without his own fault in the course of his duty because he is regarded
as a trustee (amin), and working with the permission of the owner of the property (employer).
The reason for the liability of the employer concerned with the injury which is done by his
employee is that his employee is his authorized representive (na’ib/niyabah). Hence, his
tortious action is as if the employer had caused the loss or damages himself. At the same time,
the employer alone owns the benefits gained by the employee. Therefore, the fault of the
employee is the fault of the employer, because he (the employer) is the guarantor (damin) or
surety (kafil) for the employee. That the service of the employees belongs exclusively to the
employer, and the liability belongs to him on behalf of his employee could be summarized in
the maxim: “Liability is an obligation accompanying gain”. That is to say, a person who
enjoys the benefits of a thing must submit to the disadvantage attaching thereto. Further, there
is another maxim to this effect derived from the Majallat al-Ahkam al-‘Adliyyah: “Benefit
follows responsibility”. That is to say, the enjoyment of a thing is the compensation factor for
any liability attaching thereto.
It is clear that Islamic law subscribes to the underlying principle of vicarious liability of an
employer; that is a person who employs others to work for him and then he gets benefits from
their works, is liable for any damage caused by his employees in the course of their
employment or of carrying out their employer’s business and work. For example, if an
employer ordered his employee to dig a well on his land and the employee has done it in
complying with that order, and then a person fell into it, the liability would be borne by the
employer. This is because the work is done by the employee for the benefit of the employer or
the one who ordered it. He is regarded as a person who has legal power to get benefits from
his land (wilayat al-intifa’)
In the case of Zakaria b. Che Soh v. Chooi Kum Loong & Anor (1986) 1 M.L.J. 324. In this
case, the plaintiff has worked as a driver for a research institute in Ipoh. An accident
happened on the way back to his home for lunch after finishing his task to send his director
back to his home. It was held that even though the driver was doing something for his own
benefit but his act at that time was within the course of his employment. Thus, his employer
(the State Government) was vicariously liable.In brief, if a work is done for the employer’s
business, it is usually done in the course of employment, even though it is a prohibited act. If
it is done not for the employer’s benefit, even if not for the benefit of the employee himself, it
is regarded as outside the course of the employment
11. Lastly, the job which the employee gives his service is lawful and legal. It is necessary that
the job in which the employee gives his services to his employer is lawful (mashru’) and the
employer has ordered him to do it implicitly (sarahah aw dimnan). It means that the Islamic
law of tort requires the employee to execute his employer’s orders provided that they are not
unlawful.
Thus if the commanded act concerns another person’s property, the command will be null and
void because Islamic law does not permit anyone to exercise any action on another person’s
property without his consent. And in any situation where the command is void, the
commander shall not be responsible, as the Muslim jurists have theorized that: anything
forbidden to be done, is also forbidden for its performance to be requested. Therefore the
request is regarded as invalid.
Consequently, if a person commands another person to get hold of another person’s property
illegally, the person who gets hold of the other property is liable by virtue of the fact that the
command from the first person is invalid. Hence, in any situation that the command is invalid,
the liability will not be borne by the commander.
In some cases, the employee would be held liable if he had inflicted damage on the property
of a third through the command of his employer. He will be entitled to compensation from his
employer if he did not know that the act is unlawful and illegal.
For example, the case where the employer commands his employee to make a door on another
person’s wall or to dig a well on a highway. The employer will definitely be liable for any
damage resulting from the acts of his employee. In the aforesaid cases, the employer is in the
position of vicarious liability.
However, if the employee does his jobs commanded by his employer in awareness that those
jobs are unlawful and illegal, the liability will be upon him, not upon his employer. For
example, in the case where the employer orders his employee to dig a well on a highway and
he is aware that his action is unlawful and illegal, he should be held liable for any damage that
may arise.
In brief, the Islamic law of tort puts this condition in mind before making any decision on
liability. It can be said that to implement this condition and to make the decision on liability is
a question of fact. Consequently, the Court should look at a case as a whole before making
any decision. In islam, if the employee does the job which is unlawful or expressly prohibited
12. by the employer, the employer will not be liable for any liability resulting from the acts of his
employee.
In Islam, if either one of the two elements could be proved, the employer will not be liable,
firstly, the job which is done by the employee is outside the course of employment, or the
employee does his job in a negligent manner.
By applying to the given question, Adli falls under ajir mushtarak as Adli’s method of
working is not restricted by Karim. Its noteworthy that, usually hospital staff will be
categorized as a grey areas. If the employer falls under ajir khass, then the hospital will be
liable. Conversely, if the employer falls under ajir mushtarak, then the hospital will not be
liable. Therefore, Karim was not liable for the tort committed by his employer, Adli. Adli
needs to pay compensation to Elyas for the negligence he caused.
To sum up, the liablility of a hospital for the negligence of his staff or experts dependent on
whether the professional is engaged in his own business or that the hospital and only if the
conduct of the medical officer is deemed to be part of the hospital’s business will be
vicariously liable.
3.
Strict liability means the tortfeasor is held strictly liable for the tort he commited.
The Quran stated verse 6 : 164 stated to the effect that ‘ no bearer of burden can bear the
burden of another’. According to Abu A’la Maududi, this verse indicate that every person is
responsible for whatever he does and no one is responsible for the deeds of others. Even in the
hadith stated that no person should be apprehended for an offence committed by his father or
brother.
Its pertinent to note that all Muslim jurists agree that a person is not liable for what is lost or
destroyed unless there has been negligence. However, this is an exception to the principle
which a person is held strictly liable for accidental harm irrespective the wrongful intention or
negligence.
There are four elements of strict liablity in islamic law of tort. Firstly, bringing water or
dangerous thing on to one’s land. Liability in respect of water or any dangerous things
13. depends on whether it is naturally on the land or whether its artificially or interfered in some
way. In easy words, no person is permitted to bring and keep upon his land anything which
likely to do damage. If it escapes, then the owner is bound to take care of it and has duty to
prevent it.
The author of Tabsirat al-Hukkam view that the one who brings the water in the dams without
a wall surround them, is liable if flooding. He too will be liable for injury if he surround the
water with a wall but neglects them and the water flows to the neighbour’s land. However, he
will not be liable if the injury is a result of an act of God.
Where as Imam Syafie view that the liablity will be borne if the owner acts contrary to usual
practise or the owner neglected in taken reasonable precaution.
Secondly, escape of water (ta’addi). The Muslim jurists unanimously agreed that where an
escape of water or any dangerous thing is caused by way of ta’addi, or by exceeding normal
practise and others suffers loss and damage, then the owner is strictly liable. It should be
noted that some Muslim jurists used the word ‘kharaja’ or ‘salal yasilu’ or ‘nazalal yasilu’
which can also be known as escape.
Thirdly, there are mubashir and mutassib. Mubashir/ direct cause means the person who
create the cause of destruction by oneself such as murdering or burn something. Whereas
mutasabbib means the person who create conditions leading to the destructions of something.f
for example, a person digs a well where is lawful to do so and an animal belonging to other
person happens to fall into the well and dieds. Hence, the liability fall upon the person who
dig the well. Strict liablity will be strictly imposed to mubashir irrespective the element of
ta’addi. But mutasabbib required the elemnts of ta’addi where if mutassabib couple with the
element of ta’addi then the mutasabbib is liable. However, if there are no elements of ta’addi,
then the mutasabib will not be held liable.
Lastly the elements of damage. The owner will be accoutable for his act only if the actual
damage is caused by the escape. Thus the plaintiff must prove damage since this tort is not
actionable per se.
From these facts, there are differences between strict liability in Islamic law of tort and
English tort. Firstly , the source of the strict liability. In Islamic law, it is originated from the
holy Quran and hadith whereas in English law, its originated from the case of Ryland v
Fletcher.
14. The second differences is the elements. In Islam, there is element of mubashir and
mutassabib. It should be remembered that if torts are committed by the mutasabbib, the rule of
strict liability will be applied to him when the elements of ta’addi exists but if the element
does not exist, the rule cannot be applied. Whereas for mubashir, the element of ta’addi is not
important as he will be strictly liable irrespective the existence of ta’addi or not. In English
law, there is the element of intentional storage/ accuo accumulation where the rule only
applies to an object or thing which the defendant purposely keeps and collect.
Thirdly the punishment. In Islam, the punishment include diyah(compensation), qisas or
ta’azir whereas in English tort, the defendant will be liable to pay compensation.
In conclusion, there are several differences of strict liablity in Islamic law of torts and English
law of torts.
4.
Strict liability means the tortfeasor is held strictly liable for the tort he commited.
The Quran stated verse 6 : 164 stated to the effect that ‘ no bearer of burden can bear the
burden of another’. According to Abu A’la Maududi, this verse indicate that every person is
responsible for whatever he does and no one is responsible for the deeds of others. Even in the
hadith stated that no person should be apprehended for an offence committed by his father or
brother. There are some islamic legal maxims that are connected to the principles of strict
liablity which are injury should be avoided as much as possible. For instance, if any person
constructs a sewer near a well belonging to some other people, and it contaminates its water,
the owner must remove the injury. If is possible to remove the injury, then he should close up
the sewer.
Its pertinent to note that all Muslim jurists agree that a person is not liable for what is lost or
destroyed unless there has been negligence. However, this is an exception to the principle
which a person is held strictly liable for accidental harm irrespective the wrongful intention or
negligence.
There are four elements of strict liablity in islamic law of tort. Firstly, bringing water or
dangerous thing on to one’s land. Liability in respect of water or any dangerous things
depends on whether it is naturally on the land or whether its artificially or interfered in some
15. way. In easy words, no person is permitted to bring and keep upon his land anything which
likely to do damage. If it escapes, then the owner is bound to take care of it and has duty to
prevent it.
The author of Tabsirat al-Hukkam view that the one who brings the water in the dams without
a wall surround them, is liable if flooding. He too will be liable for injury if he surround the
water with a wall but neglects them and the water flows to the neighbour’s land. However, he
will not be liable if the injury is a result of an act of God.
Where as Imam Syafie view that the liablity will be borne if the owner acts contrary to usual
practise or the owner neglected in taken reasonable precaution.
Secondly, escape of water (ta’addi). The Muslim jurists unanimously agreed that where an
escape of water or any dangerous thing is caused by way of ta’addi, or by exceeding normal
practise and others suffers loss and damage, then the owner is strictly liable. It should be
noted that some Muslim jurists used the word ‘kharaja’ or ‘salal yasilu’ or ‘nazalal yasilu’
which can also be known as escape.
Thirdly, there are mubashir and mutassib. Mubashir/ direct cause means the person who
create the cause of destruction by oneself such as murdering or burn something. Whereas
mutasabbib means the person who create conditions leading to the destructions of something.f
for example, a person digs a well where is lawful to do so and an animal belonging to other
person happens to fall into the well and dieds. Hence, the liability fall upon the person who
dig the well. Strict liablity will be strictly imposed to mubashir irrespective the element of
ta’addi. But mutasabbib required the elemnts of ta’addi where if mutassabib couple with the
element of ta’addi then the mutasabbib is liable. However, if there are no elements of ta’addi,
then the mutasabib will not be held liable.
Lastly the elements of damage. The owner will be accoutable for his act only if the actual
damage is caused by the escape. Thus the plaintiff must prove damage since this tort is not
actionable per se.
To conclude, generally the tort liability is based on fault and it is acknowledge by the Islamic
law.
16. 5.
Aqilah can be defined as all male adult and sane members of a group class of person through
which the offender or the convict expect to receive help and support. The Shafie’ schools of
law view aqilah as the relative who inherit based on closeness or loyalty not father and son.
The offender need not to pay a portion of the blood money or diyah as its all must be paid by
aqilah. The amount of the share which separate person has contributed is solved in different
ways. According to Shafie’ is ½ dinar or six dirham .
The aqilah consist of groups of man from the father side including, male sibling from
biological parent togather with their son, male sibling from paternal parent, all biological
uncle, and to name a few. However, there are exceptions which is father, frandfather and
above, son, grandson and below, idiocy, poverty and others.
Negligence means careless conduct. In Islam, a person is totally responsible for his actions
and has an obligation to take care of others. Imam Nawawi stated that ‘when a minor is upon
the edge of a terrace and is frightened at the cry of a passer-by, and falls down and is killed,
the passer-by owes the price of blood on higher scale and the obligation to pay it falls also
upon the aqilah. This shows that a duty of care was owed by the defendant to the victim of
unfortunate accidents.
This is supported by the verse 4:36 in the Quran where it puts duty upon us to be good to
parents, next of kin, orphans, neighbor, friend by your side and to name a few. Syed Abul
A’la Maududi interpreted friend by your side which means temporary neighbor include all the
companions who sit beside someone, fellow travellers, fellow customers in shop and etc.
In medical, the general rule is that the doctors must exercise such care as accords with the
standards of reasonably competent medical men. If they committed tort, they will be liable for
negligence. According to Imam Abu Hanifa, medical professional cannot be sued for
negligence as their act in accordance with the prevalent standard. In fact, the act of suing the
medical professional will lead to low morale of the profession.
Whereas Imam Syafie view that the medical professional will be held accountable, first if
their act is not been given consent by the patient or the guardian and second, the act is in bad
intention. Imam Malik shared the same view with Imam Abu Hanifa but contradict in the way
that the medical professional will be liable if he acted negligently.
17. It is pertinent to note that, unskilled doctors are prohibited from pursuing certain occupations
because of the danger to the public. This is illustrated in the hadith, a person who adopts them
medical profession though he is not a doctor, is liable (for negligence and must pay
compensation). Unless it is an emergency case and the person who performed the medical act
obtained consent of the patient which the patient knew the background of the person who
performed the medical act.
The medical professional who are liable of negligence, will have to pay blood money to the
guardian or the next of kin of the deceased, otherwise will be liable for retaliation (qisas).
There are two circumstances where the retaliation takes place, first if the surgeon operated
upon a patient and asked some else or he delegates the duty to his subordinate, and the patient
died as a result of the negligence on the part of the person who was delegated the duty as
stated above, his legal position will be analogical with the surgeon who asks the patient to
drink poison for medical purposes for immediate treatment.
Second, the liability will be held by the second surgeon if the medical act was performed
without the consent of the first surgeon. Again, if it an emergency case and the second
surgeon get the consent of the patient or guardian, the surgeon will neither be liable to pay
compensation nor liable for retaliation because their position is the same as a rescuer who acts
in good faith to save the life of some one.
Pay blood money or diyah is applicable to the cases which the requirements of qisas are not
met or inadequate. Section 81 of the Offences Against Human Body 1981, speaks about hurt
which is not liable for retaliation or it is known as qisas. One of the hurt is when the offender
caused itlaf-i-udw(whoever permanently amputates any limb or organ or part of the body) of a
physically imperfect limb or organ of the victim and the offender does not suffer from similar
physical imperfection of such limb and organ, provided that the offender shall be liable to
arsh/diyah muqaddarah.
In conclusion, hospital staff or medical expert can be categorized as grey areas. If the
employer falls under ajir khass, then the hospital (the employer) will be liable. Conversely, if
the employer falls under ajir mushtarak, then the hospital will not be liable
18. 1.
Trespass to land may be defined as intentionally enter the land without permission. The tort is
actionable per se without any proof of damage. Hence, the plaintiff in trespass is entitled even
though he has sustained no actual loss to recover damages.
The issue identify in the problem given is whether Ali had committed trespass to Ahmad’s
land?
To established trespass to land, the plaintiff needs to prove two elements which are, first the
mental state of the defendant and second, interference of the plaintiff’s land.
First, the defendant must intend to do the act which is trespass. It is not necessary to prove
that the defendant knew that he was trespassing. Mistakenly trespass is unacceptable. Hence,
trespass occurs when there exits an intention to trespass or the act of entry is done voluntarily
or the interference to the plaintiff’s land is a foreseeable consequence of the defendant’s act or
omission.
Secondly, interference of the plaintiff’s land. In Islamic law, trespass to land consists of six
factors. The first factor is remaining on the land. The defendant entered the land and refuses
to leave. When a contract of hires comes to an end, it is necessary for the person or the hirer
to give up the thing hired. The hirer must leave and exit from the land or house hired when the
period of hire ends or the contract of hire is terminated and he could be regarded as a
trespasser.
The second factor is trespass by placing objects on land or projecting upon the land. A person
cannot put his belonging on the land that is not belonging to him without the owner’s
permission, which also in line with Islamic legal maxim This is illustrated in the hadith, if
anyone sows in other people’s land without their permission, he has no right to any of the
crop, but he may have what it cost him.
Third, trespass on the surface and on the subsoil of land. Hanafi jurists’ view that whoever
owns a piece of land is the owner of what is below it. Maliki and Ibn Rushd, whoever
cultivates trees of date palm or fruit trees or any plants on the land of another is ordered to
take them out. It was agreed that persons other that owner of the ground have no right of
usufruct and the like to the ground of another without lawful permission.
19. Fourth, trespass on the highway. Majority of the jurist stated that the whole community has
the right of passing on the highway provided that it is used under the condition of safety for
the users. Al Nawawi views that, it is forbidden to make use of a public way that connects
between two places in such a manner as to obstruct the passage.
Fifth, trespass of airspace. Majallat stated that whoever owns a piece of land, he also owns
what is above it. No person may extend the eaves of a room which he has construed in his
house over his neighbour’s house airspace. If he does so, the amount which extends over his
neighbours’s house airspace should be removed.
Six, trespass ab inition which means trespass from the very beginning. It is based on the
maxim, legal permission negates tortious liability. A person, who has been authorized by law
to carry on his task, cannot be abuse it or go beyond such license by doing something that
exceeds the permission given to him. For instance, if a person was given the permission only
to take photos on the land, but he breaks the trees on that land, he can be charged for trespass
ab initio.
By applying to the question given, Ali has fulfilled the elements of trespass to land which are
mental state and interference by remaining on the land when Ali refused to vacate the land
and still continue with his farming works. He even trespasses by projecting upon the land
when he built a wooden shed to rear chicken even though the land is only for the purpose of
cultivating vegetable farm. Hence, Ali is liable for trespass to land.
To sum up, trespass to land may be committed only against a person who has possession of
the land on which the acts complained of are committed.
20. 2.
Ghasb can be recognized as usurpation. Technically it means snatching a thing with cruelty
and forcibly taking away thing.
Al Sarakshi explained ghasb as taking forcibly the property or chattel of another by such
methods such as wrongful misappropriation, deceit, theft and others. There are five elements
in ghasb which are, firstly, the act must be unlawful. Secondly, the act must have the element
of defiance of the owner’s right. Third, there must be transgression. Fourth, the act includes
both intention and lack of intention. Fifth, it must direct result of transgression.
The Hanafi jurists view that there can be no liability unless two elements are established
which are the elimination of the possession of the rightful owner and the establishment of an
invalid possession by an unauthorized person. Ghasb can only apply to moveable property. It
does not extend to land. Whereas Shafie’ view that, ghasb is already completed if a person
seizes another’s right wrongfully. The difference may be explained in the situation where a
person sits on a chair of another which according to Shafie’ may be classified as ghasb. But
according to Hanfi, it does not tantamount of ghasb unless the owner actually deprived his
chair by removal.
The punishment for ghasb is restitution. The Muslim jurists unanimously agreed that a person
who usurps the property of another must return it to its owner in its original state. This is
supported by the hadith where the Prophet stated that it is incumbent upon a person who
takes a thing from another to restore it to him. It is pertinent to note that, if the maghsub
(property), destroyed or lost by a ghasib (usurper), whether it by transgression or whether by
action or itself, he must replace it if is fungible property or pay the values of it if it in fungible
property.
To conclude, ghasb is an offence and thus Islam puts the duty on the offender to restore the
property to the original owner and pay compensation if the property damaged.
21. 3.
Trespass to land may be defined as intentionally enter the land without permission. The tort is
actionable per se without any proof of damage. Hence, the plaintiff in trespass is entitled even
though he has sustained no actual loss to recover damages.
The issue identify in the problem given is whether Bin Bin had committed trespass to
Ahmad’s land?
To established trespass to land, the plaintiff needs to prove two elements which are, first the
mental state of the defendant and second, interference of the plaintiff’s land.
First, the defendant must intend to do the act which is trespass. It is not necessary to prove
that the defendant knew that he was trespassing. Mistakenly trespass is unacceptable. Hence,
trespass occurs when there exits an intention to trespass or the act of entry is done voluntarily
or the interference to the plaintiff’s land is a foreseeable consequence of the defendant’s act or
omission.
Secondly, interference of the plaintiff’s land. In Islamic law, trespass to land consists of six
factors. The first factor is remaining on the land. The defendant entered the land and refuses
to leave. When a contract of hires comes to an end, it is necessary for the person or the hirer
to give up the thing hired. The hirer must leave and exit from the land or house hired when the
period of hire ends or the contract of hire is terminated and he could be regarded as a
trespasser.
This is shown in the case Stone v Taffe, where the deceased was a member of a society which
was permitted by the manager of a public house to carry on social gathering on the premises.
The manager knew that the licensing hours had to be strictly observed but he permitted the
society to hold a party which went on well after the licensing hours. The deceased left the
party at 1.00 pm and fell down an unlighted staircase. The brewery (the premises owner)
claimed that he had no duty regards to the condition of the premises as it happened after the
licensing hours where the deceased had become a trespasser. The court found out that the
brewery did not give a notice to the deceased, thus the deceased could not be deemed to be a
trespasser.
22. The second factor is trespass by placing objects on land or projecting upon the land. A person
cannot put his belonging on the land that is not belonging to him without the owner’s
permission, which also in line with Islamic legal maxim This is illustrated in the hadith, if
anyone sows in other people’s land without their permission, he has no right to any of the
crop, but he may have what it cost him.
Third, trespass on the surface and on the subsoil of land. Hanafi jurists’ view that whoever
owns a piece of land is the owner of what is below it. Maliki and Ibn Rushd, whoever
cultivates trees of date palm or fruit trees or any plants on the land of another is ordered to
take them out. It was agreed that persons other that owner of the ground have no right of
usufruct and the like to the ground of another without lawful permission.
Fourth, trespass on the highway. Majority of the jurist stated that the whole community has
the right of passing on the highway provided that it is used under the condition of safety for
the users. Al Nawawi views that, it is forbidden to make use of a public way that connects
between two places in such a manner as to obstruct the passage.
Fifth, trespass of airspace. Majallat stated that whoever owns a piece of land, he also owns
what is above it. No person may extend the eaves of a room which he has construed in his
house over his neighbour’s house airspace. If he does so, the amount which extends over his
neighbours’s house airspace should be removed.
This is supported in the case of Kelsen v Imperial Tobacco Co where the defendant committed
trespass by allowing an advertising board to project eight inches into plaintiff’s property at
ground level and another above ground level. The plaintiff was entitled to succeed in trespass.
This was not merely a nuisance and although the plaintiff has suffered no physical damage at
all, he was entitled to a mandatory injunction, namely the defendant was ordered to removed
it.
Six, trespass ab inition which means trespass from the very beginning. It is based on the
maxim, legal permission negates tortious liability. A person, who has been authorized by law
to carry on his task, cannot be abuse it or go beyond such license by doing something that
exceeds the permission given to him. For instance, if a person was given the permission only
to take photos on the land, but he breaks the trees on that land, he can be charged for trespass
ab initio.
23. By applying to the question given, Bin Bin has fulfilled the elements of trespass to land which
are mental state and interference by remaining on the land when Bin Bin refused to vacate the
land even when earlier notice had been given by Ahmad, but he still continue with his
business. He even trespasses the airspace when he erected an advertisement board. Hence, Ali
is liable for trespass to land.
To sum up, trespass to land may be committed only against a person who has possession of
the land on which the acts complained of are committed.
4.
Trespass to land may be defined as intentionally enter the land without permission. The tort is
actionable per se without any proof of damage. Hence, the plaintiff in trespass is entitled even
though he has sustained no actual loss to recover damages.
The issue identify in the problem given is whether Bin Bin had committed trespass to
Ahmad’s land?
To established trespass to land, the plaintiff needs to prove two elements which are, first the
mental state of the defendant and second, interference of the plaintiff’s land.
First, the defendant must intend to do the act which is trespass. It is not necessary to prove
that the defendant knew that he was trespassing. Mistakenly trespass is unacceptable. Hence,
trespass occurs when there exits an intention to trespass or the act of entry is done voluntarily
or the interference to the plaintiff’s land is a foreseeable consequence of the defendant’s act or
omission.
Secondly, interference of the plaintiff’s land. In Islamic law, trespass to land consists of six
factors.
One of the factors is trespass of airspace. Majallat stated that whoever owns a piece of land,
he also owns what is above it. No person may extend the eaves of a room which he has
construed in his house over his neighbour’s house airspace. If he does so, the amount which
extends over his neighbours’s house airspace should be removed. Whereas in English law,
according to Salmond, a mere entry into the air space above the land was not actionable
wrong unless it caused some harm to the occupier of the surface.
24. This is supported in the case of Kelsen v Imperial Tobacco Co where the defendant committed
trespass by allowing an advertising board to project eight inches into plaintiff’s property at
ground level and another above ground level. The plaintiff was entitled to succeed in trespass.
This was not merely a nuisance and although the plaintiff has suffered no physical damage at
all, he was entitled to a mandatory injunction, namely the defendant was ordered to remove it.
By applying to the given problem, Mr. Melvin built the 29 ft. structure across the center of the
highway. It is on his own land. He did not extend to Sheikh Faizal land. Thus, Sheikh Faizal
could not recover the damage of the lost profits.