Traffic Accidents & Islamic Law : An Analysis

Muhammad Shahidul Islam

Lecturer Dept. of Islamic Studies Uttara University Uttara, Dhaka-1230. Mob.: 01196-193857

Traffic Accidents & Islamic Law : An Analysis

Introduction
A traffic accidents is occurs on a road or in a place to which the public have access. This can include footpaths and bridleways. Traffic accident can result in injury, property damage, and death. It may be obvious that someone caused the accident and there will be no dispute about liability. However, there will be cases where it is not obvious, or where the extent of liability is difficult to work out. A number of factors contribute to the risk of accident including; vehicle design, speed of operation, road design, and driver impairment. Worldwide motor vehicle collisions lead to significant death and disability as well as significant financial costs to both society and the individual. This article discussion on points of The Islamic Theory of Compensation, The Situation Today, Intentional (Umd), Injuries, Responsibility in Traffic Accidents, Usage of Public Ways and the, Responsibility of the User, Examples of Situations of Liability, An Example of an "Act of God" which Exempts Liability, Causation, What is th Aqilah?, The Theory of Al-Aqilah is the Foundation of Insurance Against Traffic Accidents Applicability to Modern Times in below. &

History of Traffic Accident

The fardier a vapeur of Nicholas Cugnt allegedly crashed into a wall in 1771.1 The worlds first road traffic death involving a motor vehicle is alleged to have occurred on 31 August 1869. 2 An Irish scientist Mary Ward died when she fell out of her cousins' steam car and was run over by it. German-English composer George Frideric Handel was seriously injured in a carriage crash in 1752.3 The British road engineer J.J. Leeming, compared the statistics for fatality rates in Great Britain, for transportrelated incidents both before and after the introduction of the motor vehicle, for journeys, including those once by water that now are undertaken by motor vehicle4: For the period 18631870 there were: 470 fatalities per million of population (76 on railways, 143 on roads, 251 on water); for the period 18911900 the corresponding figures were: 348 (63, 107, 178); for the period 19311938: 403 (22, 311, 70) and for the year 1963: 325 (10, 278, 37). 5 Leeming concluded that the data showed that "travel accidents may even have been more frequent a century ago than they are now, at least for men".6 In 1969 a British road engineer compared the circumstances around road deaths as reported in various American states before the widespread introduction of 55 mph (89 km/h) speed limits and drunk-driving laws. 'They took into account thirty factors which it was thought might affect the death rate. Among these were

3 included the annual consumption of wine, of spirits and of malt beverages-taken individually-the amount spent on road maintenance, the minimum temperature, certain of the legal measures such as the amount spent on police, the number of police per 100,000 inhabitants, the follow-up programme on dangerous drivers, the quality of driver testing, and so on. The thirty factors were finally reduced to six on elimination of those which were found to have small or negligible effect. The final six were: (a) The percentage of the total state highway mileage that is rural. (b) The percent increase in motor vehicle registration. (c) The extent of motor vehicle inspection. (d) The percentage of state-administered highway that is surfaced. (e) The average yearly minimum temperature. (f) The income per capita. 'These are placed in descending order of importance. These six accounted for 70% of the variations in the rate.'7 The Islamic Theory of Compensation As compensation constitutes an important part of any discussion on traffic accidents, it seems important to give a general account of Islamic understanding of reparation for damages and injuries. The topic of daman is very wide, but this attempt will give the broad unifying principles with special emphasis on aspects concerning accidents. An important reference to the Islamic notion of reparation is in the Quranic text, to the effect : And remember David and Solomon, when they gave judgment in the matter of the field into which the sheep of certain people had strayed by night: We did witness their judgment. To Solomon We inspired the (right) understanding of the matter: to each (of them) We gave Judgment and Knowledge; it was Our power that made the hills and the birds celebrate Our praises, with David: it was We Who did (all these things).8 According to leading commentators, the Quranic text refers to sheep which got into a vineyard by night9 and caused severe damage by eating all the crop. Dawud, as king and judge, awarded the owner of the vineyard the sheep in compensation for damages. His son Suleiman, a young man at the time, suggested a better judgment. He said that the cropus of the property was not lost. It was a loss of its fruits. Therefore, the vineyard was to be given to the owner of the sheep to restore to its original condition. And, in the meantime, the owner of the vineyard should be allowed to detain the sheep long enough to benefit from their milk, wool and their young to make up for the time factor loss. Allah (s.w.t.) praised Sulaimans insight in distinguishing between corpus and income.10

4 It is interesting to note a similar well-reported case occurred in the time of the Prophet Muhammad (s.a.w). A she-camel belonging to Al-Barab. Azib, a famous companion of the Prophet (s.a.w.), strayed into an orchard and caused a lot of damage. The case was brought to the Prophet (s.a.w.) and he ruled that the owners of all fields and cultivations were responsible for guarding them during the day and the owners of animals were to be liable for any damage caused by their animals by night.11 This ruling is accepted by Al Jumhur comprising Al-Malikiyyah, Al-Shafiyyah and the Hanabilah. 12 Another important nass here is the declared prohibition not to cause any harm to another person and equally, if harm is done, the victim is not allowed to inflict an unacceptable harm in retribution. This is well expressed by the famous Hadith : I translate this Hadith to mean no harm is to be inflicted on another and no unjustifiable harm is to be inflicted in recompense. 13 The Hadith lays basic principles : (a) All harm to anothers body or property is harm and must be avoided. (b) The victim should not seek reparation by inflicting unnecessary harm in retribution. (c) The Hadith, in its totality, establishes the primary liability of any wrongdoer to make up for the harm inflicted by him. Another Hadith, of importance here, is : 14 . What concerns us here are the first three words of the Hadith. Al-ajma is an Arabic word which means dumb 15 The Prophet (s.a.w.) used the word in reference to animals because the inability to articulate is a common feature to them all. The second word means its injury, and the third word jobar means unredeemable. The meaning of this sentence is : an injury caused by an animal cannot be reclaimed.16 Another version of the Hadith reported by Ibn Hanbal and Al-Bazzar uses the Arabic word al-sa imah instead of al-ajma which further indicates the Prophet (s.a.w.) limited the species of animal to the grazing animals which are mormally harmless like cows, camels, sheep etc... (mansuetae naturae). Consequently, animals (Ferae naturae) which are normally dangerous like lions, bears, monkeys, elephants, chimpanzees and dingoes are excluded. The Muslim jurists concur that owners of the latter species of animal are strictly responsible for ensuring that they do not get out of control, and to compensate all casualties regardless of fault.17 The above Hadith : "an injury caused by an animal cannot be reclaimed", being undoubtedly authentic, caused a legal stir among Muslim jurists. Probing their general views on this matter, i have found them unanimous on the meaning of the word

5 "animal" : in addition to the limitation of its species as described above, it includes straying animals (al-dabah al-munfalitah)- that which is cut loose, or an unconfined, grazing, or wandering animal. Whether liability in an injury caused by such an animal is based on negligence or not is disputable among the jurists. In understanding the rationale of the rule conveyed by the Hadith under discussion, we have to take into consideration the nature of the society and the environment in which the statement was made. In a society which was predominantly dependent on animals for its economy, transportation and nutrition, individuals themselves had to bear the responsibility of guarding against injuries from such large numbers of animals and take care of the normal hazards pertinent to such a peculiar society. Envision the intolerable burden which would be incurred by the owners of the numerous and various species of animal, in such a society, if we were to hold them generally liable for their animals actions, bearing in mind that it was neither customary nor feasible for owners at that time to fence them up.18 I understand the Hadith as greatly minimizing the responsibility of owners in that kind of environment so as not to affect the economic activity and enterprise in a society predominantly dependent on animals. There is no indication in the Hadith to exclude cases of extreme negligence where the owner knows that his camel, cow or horse has a peculiar dangerous disposition, such as biting for no reason or galloping abnormally. Furthermore we have to bear in mind the many natural acts (acts of God) which could cause animals to act dangerously. An extraordinary flash of lightning, the roar of falling stones, or a sharp sound could strike terror into cattle, for example, and they might kill or destroy much in the ensuing stampede, for example and they might kill or destroy much in the ensuing stampede. The Situation Today The problem of responsibility for straying or grazing animals as explained above assumes a new dimension with the advent of highways and fast motor traffic. To what extent are the owners of such animals responsible for their trespass onto highways and the ensuing harm to life, limb and property? Saudi Arabia, the Gulf countries and perhaps many others, are squarely facing this problem today as a result of camels traversing highways and the horrific accidents that result from such incursions. Some scholars, still upholding the generality and immutability of the Hadith, exempt owners from all liability. Many others argue that we are living in an environment different from that of the Prophet Muhammad (s.a.w.) and this fact should be taken into full consideration and owners should be responsible when highways are surrounded by land with many grazing camels or other animals. I definitely support

6 this view and in my opinion, a just consideration has to be given to both farming and motoring interests.

Statistics of Traffic Accidents in Some Countries 19

C ountry L ength C irculation N b of the K illed for S urface V ehicles in K illed for P opulation D ensity of the road (m illions of vehic. m illion (thousands circulation billion of km 2 (m illions)(inhabitants/km ) netw ork vehicles x for 100 of of km ) (thousands) travelled (kilom eters) km ) inhabitantsinhabitants

Germany Austria Belgium Denmark Spain Finland France Greece Hungary Republic of Ireland Italy Luxembourg Netherlands Poland Portugal United Kingdom Slovakia Slovenia Sweden Czech Republic Partial Total Eu (20 countries) Iceland Norway Switzerland

357 84 33 43 505 338 551 132 93 71 301 3 42 323 93 244 49 20 450 79 3809 103 324 41

82,5 8,2 10,4 5,4 43,4 5,2 60,5 11,1 10,1 4,1 58,1 0,5 16,3 38,5 10,5 60,2 5,4 2 9 10,2

231,1 97,7 320,3 126 86 15,5 109,7 84 108,5 58,6 192,8 179,8 392,5 119,4 113,3 246,7 110,1 97 20,1 129,6

54 520 5 279 6 159 2 570 27 657 2 871 37 168 6 641 3 370 1 937 43 141 358 8 627 16 815 5 481 33 717 1 834 1 150 5 131 4 732

626 981 107 143 151 372 72 074 666 204 79 150 1 002 486 40 164 180 994 95 752 305 388 2 876 117 430 381 462 81 739 413 120 17 755 20 196 214 000 55 495

684 283 82 221 94 677 47 940 ND 51 675 552 800 81 635 ND 37 840 654 197 2 875 133 800 377 289 ND

66,1 64,5 59,1 47,3 63,7 54,7 61,4 59,9 33,4 46,7 74,3 77 52,9 43,6 52,2

64.8 93.8 104.5 61 103.1 72.2 87.9 149.1 126.6 96.2 94 98.9 46 141.3 118.8 55.9 112.6 69* 48.7 125.8 88.5 64.6 48.5 55.2

7,8 9,3 11,5 6,9 ND 7,3 9,6 20,3 ND 10,5 8,3 16,0 5,6 14,4 ND 6,7 45,4 16,6 5,9 27,2 11,6 9,5 6,1 6,5

499 396 56 13 402 15 519 75 196 50 262 3 451 938 2 006 36 550 62 685 34 58,5 56,8 46,3 59,7 80,3 63,6 68

451,1 118,4 0,3 4,6 7,4 2,9 14,3 179,6

269 158 4 631 781 236 2 938 5 043 91 916 92 511 71 027

Intentional Injuries This paper deals with accidents in which there is no deliberate act to harm a person or property. However, it must be made clear that the Muslim jurists are unanimous20 in their incrimination of the person who deliberately uses a means of transport, be it an animal or a ship or a wagon, to harm a person or his property. He could be charged

7 with murder, criminal injury or assault and battery in the ordinary way as if he used a gun or flung a stone or hit the other with a cudgel. Such an act is punishable by qisas.21 Some of the hanafi jurists categories cases of death in such a case as shibh al-umd (semi-intentional) and therefore, punishable by stringent diyah and tazir. In their view, animals, boats or cars are not the usual instruments for committing murder. But theirs is an unacceptable minority view and seems irrational. Responsibility in Traffic Accidents The problem of responsibility in traffic accidents and compensation for them assumes great priority in modern legislation due to developments in modes of transportation on land, sea, air, underwater, underground and space, with a wide range of velocities. The large and fairly regular toll on life, limb and property in our machine age has been responsible for various legal expedients designed to define the kind of harm for which reparation is sought, the nature of the defendant's conduct and the provision of more effective ways of compensating casualties. this part of the paper seeks to explain the Islamic legal provisions dealing with responsibilities for traffic accidents and their suitability in modern situations. There has been a general misunderstanding among many Muslims including many in the legal profession, that all traffic accidents fall into the categories of killing, injuring or damaging by mistake (khata). Consequently, they take it for granted that the reparations mentioned in Ayah 92 of Surah An-Nisa (dealing with killing by mistake and reparations for it), and the reparations mentioned in Ayah 45 of Surah Al-Maidah (dealing with reparation for injuries) are unavoidable, regardless of whether the driver is at fault or not, whether the incident is within human foresight to anticipate and avoid, or whether the victim himself is solely responsible for the accident or not. But a close scrutiny of Islamic jurisprudence reveals a different legal analysis highlighting the practicality of the Islamic Shariah and the great determination of our predecessors never to divorce themselves from the norms of commonsense and natural justice. The early Muslim jurists did not know of the present sophisticated means of transportation such as automobiles, trains, aeroplanes, submarines, rockets. They discussed traffic accidents in the light of the available transportation modes in their time, which were mainly animals, ships and simple wagons. But the rules and theories they deduced from their general understanding of the Qur'an and the Sunnah are of a nature which validates and makes applicable those rules and principles for all time, regardless of the continuous development and variation to the means of transportation. The perpetual duty of genuine Muslim jurists is, indeed, to elucidate such basic

8 principles and to apply and express them in the language which best suits the needs and circumstances of our time. Usage of Public Ways and the Responsibility of the User The usage of public ways is a common right for all citizen with the strict requirement that they not expose others or their properties to danger. And the user of the public way is only responsible if he is at fault. This legal stand is expressed in Badai AlSanai : "The basic rule is that utilization of the public way, be it walking riding an animal, driving or guiding it, is permissible with the condition of safety for others, and any act which breaches this safety is not permissible and any harm ensuring from such a breach is to be compensated for, i.e. (madmun), unless the act is unavoidable.22 Al-Sarakhi mentions the same principle in almost identical words and adds the following important statement : "And the safety of others is only in cases which he can guard against and not in cases which he cannot guard against because any legal requirement from any person is dependent on natural capacity (al-wus). If we require compensation in cases which he cannot guard against, then he will not be able to utilize his right to use the public way for fear of killing a person by an act which he cannot guard against." 23 The following statement is found in Al-Majmu Sharh Al-Muhadhdhab which is a basic source of Shafi legal views : a) If the pedestrian was negligent in exposing himself to the car and the driver was capable of avoiding the accident but did not, then he would be liable for half the diyah because death was caused by both of them. b) But if the accident is beyond the capacity of the driver to avoid and there was no negligence from his side such as a defect in the brakes of the car, he would bear no liability whatsoever. He continues to say : Al-Masudi reported Imam Al-Shafi as saying : "If a man was standing in the public way and a moving person collided with him and both died, there would be no diyah for the moving person and the diah for the standing person should be the liability of the 'Aqilah' of the moving person. Similarly, if a person slept in the public way and was hit by a moving person, there would be no diyah for the person sleeping in the public way (bcause he was negligent) and the diyah of the moving person should be borne by the aqilah of the sleeping person. 24

9 Imam Malik is reported to have made the following statement in reply to a question put his disciple Sahnun as reported in Al-Mudawwanah Al-Kubra : "I Said : if the animal was guided by a person and it kicked a man, seriously injuring him (what would be your judgment)? Malik said : the owner should not be liable unless the animal kicked because something was done to it and that caused it to kick."25 Another statement made by Imam Malik is : "I said : if a ship collided with another ship and both were wrecked and sank with their passengers and loads (what is your judgment)? Malik said : If that (collision) was due to the strength of wind overcoming the operators of the two ships or the collision was unavoidable, there should be no liability on both of them whatsoever. But if it was within their capacity to avoid the collision and they did not, they should be liable."26 The legal stand of the Hanbali School, is revealed in the following statements : "The rider, guide or driver of an animal which is under his control, is liable for any harm caused by its leg or mouth except kicking when noting was done to cause it to kick."27 In Kitabul Furu is the following brief but important statement : "If an animal overwhelms its rider without any negligence on the part of the rider (and causes harm) the rider is not liable. 28 The most important conclusions to be drawn here are : a) The four madhahib unanimously maintain the interest in the security of the people and interest in freedom of traffic. In other words, they emphasise the right to free traffic in public ways but attach a strict obligation to it to avoid conduct fraught with unreasonable risk or danger to others. Every user is responsible for taking reasonable care so as to avoid acts or omissions which he can reasonably foresee as a cause of harm. 29 b) The user of the public way is only liable for the harm caused by his negligence or a breach of the above mentioned obligation. c) the user is not liable for harm caused by situations that are beyond human capacity to avoid. d) The defence of "act of God" such as an unexpected whirlwind or flash of lightning or erosion is acceptable. Examples of Situations of Liability It is interesting to note that the hanafiyyah hold the driver of an animal responsible for the harm caused by the mouth or the front leg of the animal as this is within his

10 capacity to control by bit and reins or other modes of control. Also he can foresee situations of this nature. They exclude liability for a harm caused by the back leg and the tail as the driver cannot see from behind. No Kaffara is due from him in both cases even if the harm causes death. 30 Note the interesting comparison between this Hanafi legal stand and today's generally accepted traffic rule that when a vehicle is knocked from behind, it is the strict liability of the driver of the car responsible for all resulting harms because it is not within the capacity of the driver of the car in front to take care of what is behind him. The following statement is in Sahih Al-Bukhari : "Ibn Sirin said that they used not to give compensation in case of a kick and gave compensation in the case of (a harm resulting from) a rider pulling the reins or rutting the bit. Hummad said that there was no compensation if the animal kicked back in the course of being disciplined. Al-Hakam and Hummad said that if a man was transporting a woman on the back of a donkey and she fell down, he should not be liable. Al-Sha'bi said that if a user (unreasonably) exhausted an animal then he should be liable for then harm (it causes as a result.) 31 I was surprised to find in Al-Majmu' the following statement : "If the driver observes all traffic laws (he called them akab al-tariq) but he stops suddenly to avoid danger and another car rams his car from behind and the driver of that car dies then : a) If the driver of the car in front is able to give a red signal before he stops but he does not, then he is liable for a light diayh (diyah mukhaffafa). b) But if he fives a proper red signal, he is not liable for the death as the victim died from his own act (negligence)." 32 In Kashshaful Qina is the following statement : "If the rider of an animal makes an unusual rut of the bit (lijam) or hits the animal on its face or unnecessarily pokes it and as a result causes harm, the rider is liable. Similarly, the harm done by the animal's youn following it is the liability of the owner as it should also be under his control."33 In Al-Mudawwanahtul Kubra : "A man asked to the Imam Malik : If the man stops his animal in the public way where he is not allowed to do so and the animal causes harm, is he liable? Malik said : Yes." 34 Identical hypothetical cases are mentioned in the Hanbali and Hanafi sources. 35

11 In Al-Muhadhdhab, the Shafee give other examples of liability. For instance if an animal urinates on the public way and as a result, a person slips down and dies, the owner is liable. 36 IIIn Badai Al-Sanai, similar examples of urination, droppings and saliva as causes of harm or death are given. 37 Today's automobiles do not urinate, make droppings or salivate but a valid qiyas can be made to the liability of an automobile driver who changes the oil or empties his radiator or leaves scraps from his car in the public way and somebody suffers harm from his actions. The following statement is made by the author of Al-Muhadhdhab : "It tow ships collided and both were wrecked and sank, then if that was due to the negligence of the crew who did not take good command of their ships, or sailed in a strong wind in which ships should not usually sail, then the crew of each ship should be liable for half of the value of the other ship and half the value of its load." 38 In several references, the following case and ruling are mentioned : "If any part of the harness or any load carried on an animal falls on a person and kills him, the owner should be liable as he could have avoided this by being more careful when tightening the saddle, bit or load." 39 An Example of an "Act of God" which Exempts Liability The following statement given by the Malikis provides such an example : "If tow ships collide and this is due to a wing which blew when they wre sailing, they (captains and crew) should not be liable.40 This view is accepted by all other Madhahib. Causation Muslim jurists gave the theory of causation in traffic accidents a lot of attention. They discussed it under the title of Al-Mubashir wal Mutasabbib. Al-Muhashir is the direct perpetrator of the act and Al-Mutasabbib is the one who causes and act which causes the direct perpetrator to do his act. They also discussed it under the title of AlNakhis, that is, the one who pokes an animal and causes it to jump, to kick or to gallop and cause harm. The general view here is that, in addition to the factors mentioned above, the harm must have been caused by the defendant. Their discussion here is detailed and sometimes complicated because the topic of causation is considered complex and vexing among todays jurists. But, in summation, it can be sid that in determining the relation between the act and the injury, they followed the rules of cause and effect in accordance with the scientific and objective notions of physical sequence,. Take, for example, the following statement in Al-Mabsut :

12 If somebody is riding an animal in the public way and a man pokes or hits it and it kicked and killed a passer by, the poker is liable rather than the rider, because his poking or hitting is unwarranted and, therefore, liable for the ensuing harm. This was reported to be the judgment of Umar Ibnul Khattab and Masuk Rd. 41 He continues to say : It the animal kicks the poker himself and kills him, nobody is liable. If the poke causes the rider to fall down and die, then the diyah of the rider should be borne by the aqilah of the poker. The same rules apply if the animal is standing or walking. But if the poker pokes by the permission of the rider then both are equally liable. 42 It must be noted here that the mutasabib should be liable only if he is wrong in his act. But if he is not wrong, for instance when an animal trods on his foot (al-mutasabbib) and he pokes the animal to dislodge its leg, then he is under no liability whatsoever. What is th Aqilah? The Muslim jurists are of various views regarding the persons who constitute the aqilah. Imam Al-Kasani say : "Regarding the amount to be taken from each one of them, no more than three or four dirham are to be taken from each member and not more. If the number of the members of his aqilah is small, then the next nearest tribe will be added to it so as to decrease the burden.43 To elaborate, the Prophet (s.a.w.) in upholding the notion of aqilah with the raison d'etre of munasara (co-operation in difficulties), had inaugurated in Islam, the system of social insurance to help hapless victims of unfortunate circumstances by distributing the liability of compensation among a group of Muslims who are related to him in one way or another. Consequently, the notion of insurance in Islam is indeed acceptable, and there is nothin wrong in devising a system requring each industry or those engaging in a prticular activity to pay a specific voluntary or compulsory amount monthly or annually, to collectively bear the burden of compensation for and unintentional harm committed by one of them in the course of his work, provided that insurance should not be for commercial gain nor bear any taint of unury or include any unreasonable gharar44.

The Theory of Al-Aqilah is the Foundation of Insurance Against Traffic Accidents

The general rule in the shariah is that nobody is responsible for the fault of another. This is expressed in al-Qur'an to the effect : And no innocent person shall bear the burden of an at of another. 45 The Prophet Muhammad (s.a.w.) confirmed this Qur'anic principle when he addressed a father who was accompanied by his son saying : "You will not incriminate him by your wrong act and he will not incriminate you by his wrong act." 46

13 But in another well-known case of shibhul umd killing in which two women from the tribe of Husail fought and one of them flung a stone at the other who was pregnant, killing her and her unborn baby, the prophet (s.a.w.) ruled that the diyah was to be paid by the aqilah of the murderer. 47 The Prophet (s.a.w.) intended the aqilah concept which has been known since the jahiliyyah times, to be and exception to the general rule because of the cooperation and benevolence contained in it as Allah (s.a.w) commanded, and in order to signify the legality of the important notion of collective cooperation in all good form such as today's systems of insurance, which serve an important role in the social, psychological and economic welfare of individuals and societies. Applicability to Modern Times a) All traffic laws introduced to regulate traffic and to help people avoid accidents and hazards in public ways are acceptable and binding and they are a good example of the kind of binding laws promulagated by uli al-amr (legal authorities). Every Muslim and citizen of the Islamic state is bound to observe them. this is both a religious and a legal duty. Muslaim jurists talked about 'adab al-tariq' and by them they meant traffic laws. b) The shariah pioneered the rational attitude-adopted by many secular laws todaythat there is no liability without fault, no liability in unavoidable accidents, and no liability for inevitable 'acts of God'. That is because indiscriminate liability as many people wrongly understand from the ayat in Surah Al-Nisa and Sura Al-Maidah, as much as it is unjust and irrational, will impede progress and economic growth. That is because many people will give up their projected activities and enterprises if they are confronted with the dilemma of shouldering the cost of any resulting harm, whether negligent or not, foreseeable or unforeseeable. It is a necessary social and economic requisite that people should only be responsible when the are negligent. c) Consequently, if the operator of an automobile or any mechanized means of conveyance strictly follows the prescribed traffic laws and an accident still occurs, then the elements of negligence or foreseeability should be fully considered to decide the degree of civil responsibility and criminal negligence. In the absence of any fault, the operator should not be liable. d) Therefore, if such an operator takes all necessary precautions and strictly follows traffic laws, and somebody jumps in his path or falls from a tree in front of his car and is crushed to death, there is no liability on the driver if it becomes clear that the deceased's act made his death unavoidable. e) If somebody, in the above case, pushes such a victim or another car knocks him into the path of another car, then both of them, the pusher and the shover, are mutasabibs and they are solely liable.

14 f) If a driver violates traffic laws and an accident occurs, he alone will be liable for all ensuing casualties and for tazir punishments. g) We have to note carefully the difference between an animal and an automobile. the animal is a living thing and consequently has a will and propensity to act beyond the rider's control or wish, while in the case of an automobile, the control is complete. The automobile or any part of it does not move by itself. It is an instrument under the full control of the user and modern technology continues to improve the quality of roads and motor vehicle viability in order to perfect this aspect of controllability. Therefore, in cases of automobiles, there are no causes of instinctive biting, kicking or galloping. 48 The responsibility of the operator of an automobile is much greater than that of the rider of a camel or a horse. h) Another contemporary situation in which the theory of causation as explained by the Muslim jurists can be applied is when a driver stops waiting for the green light, and another car hits him from behind causing him to move forward and cause damage to life and property. The driver hitting from behind is liable for all losses. The Muslims jurists Theory of causation (al-mubashir and almutasabbib) will remain forever valid in judging such expected situations in air, land sea or under the ground. i) The Muslim jurists have clear views of responsibility in cases of parking which is a common phenomenon today. They are explicit about place or in a wrong manner, he is fully liable for all consequences. j) But if he stops his car in an authorized parking lot and in the right manner, he is not liable for any harm that may result even if it is foreseeable, because he is faultless. In this case it will be the responsibility of the person possessing the parking lot or whoever authorizes such parking. k) If a sudden whirlwind, earthquake or a big splash of water, any liquid or fire occurs and the operator of a vehicle instinctively acts in a way which causes death or damage, he is not liable. l) If the accident occurs as a result of faulty engineering of a road or a brigde, the state or the agent responsible for the faulty engineering is liable and not the driver, if he is faultless.

Reference: . The first known account of this crash dates to 1801. "Le fardier de Cugnot". http://www.ile-defrance.drire.gouv.fr/vehicules/homolo/cnrv/histoire.htm. 2 . "WHO | Road safety: a public health issue". http://www.who.int/features/2004/road_safety/en/.. 3 . Dent, Edward Joseph. Handel (R A Kessinger Publishing W.D.) p. 63. 4 . Leeming, J.J. (1969). Road Accidents: Prevent or Punish?. Cassell. 5 . Sagberg, Fosser, & Saetermo (1997). An investigation of behavioral adaptation to airbags and antilock brakes among taxi drivers (29 ed.). Accident Analysis and Prevention. pp. 293302. 6 . Dent, Edward Joseph. Handel. R A Kessinger Publishing. pp. 63. 7 . Hallmark, Shauna, Evaluation of the Iowa DOT's Safety Improvement Candidate List Process, Center for Transportation Research and Education, Iowa State university, June 2002. 8 . Al-Quran, Surah Al-Anbiya, 21 : 78-79. 9 . The word by night is understood from the Arabic word nafashat as used in the nass. It means straying by night. 10 . Al-Quran, Surah Al-Anbiya, 21 : 79. 11 . Imam Al-Shafee, Mukhtasarul Muzni, Kitabul Um, Vol.5, P. 174. It was reported by Imam Malik in Al-Muwatta, Imam Ahmad b. Hanbal in his Musnad. Etc. 12 . Ibn Hajzr, Fathhul Bari, (Beirut : Darul Marifah, W.D.),Vol. 12, P. 258; Awjaz, Al-Masalik (Beirut : Dar Al-Fikr, 1989) Vol. 12, P. 238. One connot but admire the richness and the advanced levels of jurisprudence achieved by our predecessors. Compare their views and their great insights in damages caused by stray animals or escaping fire or water as compared with the labouring of English Courts of Law to reach the rule in Rylands v Fletcher and the very controversial decisions taken after Rylands and Fletcher. In Nail al-Maarib, a basic source of the Hanbali jurisprudence, we read the following statement which is a concise summation of the rule in Rylands v. Fletcher : Whoever starts a fire in his own property of irrigates his land but the fire and the water spread to his neighbours land and causes damage, is liable for the damage caused. Al-Shaibani, Nail alMaarib, (Kuwait : Maktabatul Falah), Vol. 1, p. 449. It is noteworthy that the courts have departed from the strict liability rule in Rylands v. Fletcher, See Cambridge Water v. Eastern Counties Leather (1994), 1 All er 53. 13 . Imam Malik, Al-Muwatta, (Beirut : Al-Maktabahtut Taqafiah, 1988), Vol. 1, p. 745. Imam Malik reported it as mursal hadith but the chain of reporters is completed by Ibn Majah in his Sunan, (Cairo : Daru Ihyaul Kutubil Arabiyyah, W.D.) Vol. 2, p. 784 14 . Bukhari, Abu Abdullah Muhammad Ibn Ismail Ibn Ibrahim Ibn Mugira, Al-Jmius Sahih, ( Beirut : Darul Fikr, 1981), Vol. 8, p. 47, Vol. 2, p. 747, Dawud, Suliman Ibnul As As AsShijistani, As-Sunan, (Darul kutubil Ilmiyyah, W.D.), Vol. 2., p. 298. 15 . The word dumb is better (in translating) than the word Mute because mute is often applied to things not sentient according to Websters New Twentieth Century Dictionary (Prentice Hall Press, 2nd edit.), p. 1186; Abul Fadl Jamal Uddin Al-Afriqi al Misri, Lisanul Arab, (Beirut : Daru Sadir Pablications, 1955), Vol. 13, p. 389. 16 . Other synonyms are unredeemable, unrecoverable, irremedeable and unredressable.
1

17

18

19

20

21

22

. Ibn Qudama, Al-Mughni, (Beirut : Darul Kitan Al-Arabi, W.D.), Vol. 10, p. 357; Al-Bahuti, Kashshaful Qina, (Beirut : Darul Fikr, 1982), Vol. 4, p. 125; Al-Shaibani, Nailul Marib, Ibid., Vol. 1, p. 449. He gives the example of a vicious dog, lion, wolf, tiger or cat which eats peoples birds. . It is interesting to note the English case Tiller v Ward (1882) 10 QBD 17, which draws an interesting parallel to the Islamic situation discussed above. In this case, an ox belonging to A, while being driven carefully through a town, entered through an open door into a shop belonging to an ironmonger. It took a long time to get it out and damage was done to the shop. A, the ox owner, was held not liable for any damages for this was one of the inevitable risks of driving cattle on the streets. "It would have made no difference if the ironmonger's door had been shut instead of open, and the ox had pushed its way through, or had gone through a plate-glass window." W.V.H. rogers, Winfield and Jolowicz on Tort, (London : Sweet and Maxwell, 1979), p. 440. . Source IRTAD for the following data :Number of vehicles : 2005 except Ireland 2003 ; Luxembourg 2004 ; Slovakia 2002; Length of the network: 2005 except Hungary and Luxembourg 2004 ; Germany and Danemark 2003 ; Slovakia 2002 ; Iceland 2000 ; Ireland 2001 ; Netherlands 1999 ; Greece and United Kingdom 1998 ; Portugal 1993 ; Italy 1992. Distance in Kilometres : 2005 except Danemark 2004 ; Italy and Netherlands 2003 ; Ireland 2001 ; Iceland and Slovakia 2000 ; United Kingdom and Greece 1998. -Source IRTAD except for Ireland, Luxembourg, Slovakia, Sweden, Iceland and Norway: source INED. . Al-Hattab, Mawahib Al-Jalil, (Cairo : Darul Fikr, 1978), Vol. 6, p. 243; Al-Muhadhdhab, (Beirut : Darul Fikr, 1994), Vol. 2, p. 274. . The notion of using a means of transport to kill or injure a person intentionally as envisioned by the early jurists has become a reality. The New Straits Times reported in its issue of Tuesday, August 24, 1993, p. 14, the following : "L/Kpl Wan Ismail Wan Jaki had intervened to stop a fight outside a pub at Section 8 about 2.30 am when he was run down by two cars. One of the cars tried to knock down Wan Ismail when he went to his car to get his baton. He managed to avoid the car, but a second car rammed him followed by another. Wan Ismail, who suffered serious head injuries was rushed to the University Hospital where he In another incident in Jalan Tandang. Petaling Jaya, November 1995, a robber staged a head on colision with his Mitsubishi Pajero and an unmarked customs vehicle killing a senior customs officer and seriously injuring others. -Suspects were arrested on New Sunday times, K.Lumpur, Jan. 14, 1996, p. 6. . This legal stand is expressed in Badai-Al-Sanai : "The basic rule is that utilization of the public way, be it walking, riding an animal, driving or guiding it, is permissible with the condition of safety for others and harm ensuing from such a breach is to be compensated for, i.e. (madmun), unless the act is unavoidable. -Al-Kasani, Badai Al-Sanai fi Tartibus Sharai, (Beirut : Darul Kutubil Elmiyyah, 1986), Vol. 7, p. 272.

23

Al-Sarakhsi mentions the same principle in almost identical words and adds the following important statement : "And the safety of others is only in cases which he can guard against and not in cases which he cannot guard against because any legal requirement from any person is dependent on natural capacity (al-wus). If we require compensation in cases which he cannot guard against, then he will not be able to utilize his right to use the public way for fear of killing a person by an act which he cannot guard against. -Al-Sarakhsi, Al-Mobsut, (Beirut : Darul Marifah, 1987), Vol. 25, p. 188. Ibid., Vol. 25, p. 189. Al-Sarakhsi continues to give examples of unavoidable incidents, for instance if an

animal stamps on a small stone which is flung and if it damages the eye of a passerby, the rider is under no liability whatsoever. Similarly, if it urinates or excretes droppings while walking or suddenly stops to urinate as some animals do, or if its saliva comes out of its mouth and falls to the road, the rider is not liable for any harm resulting from the slipperiness that would cause sliding or collision.
24 25

. . 26 . 27 . 28 .
29

30 31

. . 32 . 33 .
34

Al-Nawawi, Al-Majmu Sarhul Muhadhdhab, (Beirut : Darul Fikr, W.D.), Vol. 19, p. 28-29. Sahnun, Al-Mudawwanahtul Kubra, (Supran, W.D.), Vol. 11, p. 506. Ibid. Al-Saibani, Nailul Marib, Ibid, Vol. 11, p. 450. Shamsuddin b. Muflih, Kitabul Furu, (Beirut: Alamul Kutub, 1985), Vol. 6, p. 438. . Al-Jumhur excluded a harm caused by the leg of an animal regardless of fault or negligence depending on a Hadith to the effect. "The injury caused by the leg is not claimable." But Imam Al-Sahi denied the authenticity of this Hadith and described it as a mistake and refused to take it into account. -Imam Al-Shafi, Mukhtasarul Muzni, Ibid., Vol. 5, p. 180. Imam Al-Shafi, Mukhtasarul Muzni, Ibid., Vol. 5, p. 189. Bukhari, As-Sahih, Ibid., Vol. 8, p. 47. Ibid., Vol. 18, p. 28-29. Kashsaf, Al-Qina, Ibid.,Vol. 11, p. 126-127. . Sahnun Al-Mudawwanahtul Kubra, Ibid, Vol. 4, p. 506. In its issue of reported in 'The New straits Times' front pase the following : "Muar, Thurs. The driver of a stationary lorry, which contributed to a tow-vehicle collision resulting in the death of four persons, was today ordered by the High Court here to pay RM187,500 in damages to two families. Judge Richard Talalla ordered lorry driver Gan Eng Hwa, whose vehicle was parked on the road at the time of the accident, to pay for funeral expenses, loss of dependency, general damages for pain and suffering and for bereavement and legal costs. In the accident which occurred at 3.30 pm on July 7, 1985, a car and an express bus were involved in a head-on collision because Gan's lorry was parked in a manner which was obstructing the flow of traffic at the 24 km Jalan Muar-Batu Pahat... Talalla said there was sufficient evidence to show that the lorry was obstructing the traffic flow and had resulted in the collision between the car and the bus."

35 36

. . 37 . 38 .
39

40

41 42
43

. .

44

This ruling which was treated as a major news item by such a reputed newspaper as the New Straits Times was given by Imam Malik in the above-mentioned statement more than thirteen centuries ago. -'The New straits Times' Friday, August 13, 1993. Nail Al-Maarib, Ibid., Vol. 10, p. 448; Al-Mabsut, Ibid., Supra, Vol. 15, p. 445. Al-Shirazi, Al-Muhadhdhab, (Cairo : Egypt : Isaul Babil Halabi press, n.d.), Vol. 2, p. 194. Ibid., Vol. 15, p. 272. Ibid., Vol. 18, p. 158. . Al-Mabsut, Ibid., vol. 16, p. 189-190; Badai Al-Sanai, Ibid., Vol. 14, p. 271; AlMudawwanahtul Kubra, Ibid., Vol. 11, p. 506. . Al-Mudawwanahtul Kubra, Vol. 11, p. 508. All other books of the Malikis mention the same example and the same judgment without any difference in views. It accept The Injury Costs Recovery Scheme allows the NHS to recover the cost of treating an injured patient in cases where personal injury compensation is paid to that person. Under the scheme, the person paying the compensation must reimburse the NHS for hospital treatment and ambulance services, up to a maximum amount. The scheme applies to everyone paying compensation and not just to insurance companies. The scheme is administered by the Compensation Recovery Unit of the Department for Work and Pensions. Al-Sarakhsi, Al-Mobsut, Ibid., Vol. 27, p. 2. Ibid. . The following statement suffices for the purposes of this research. In talking about the aqila of a certain person, the author said : "His aqilah are members of his diwan (battalion) and they are his fellow adult ad male soldiers. The diyah will be taken from their salaries. This is our view (the Hanafiyyah) and Imam al Shafie, may Allah have merce on him, says that the aqilah are members of his tribe which is his blood relationship. Our opinioon (the Hanafiyyah's) is correct because of the ijma of the companions who approved Umar's ruling that the aqilah were members of the diwan and no one of them objected as reported by Ibrahim al-Nakhi who said that the diyah was originally on the tribes, but after Umar, may Allah be pleased with him, constituted the diwans, he made them responsible for the diyah rather than the tribes. Consequently it is understood that the raison d'etre in the concept of aqilah is (munasarah) whice is the collective bearing of the burden of compensation rather than who are its members. If a man has no diwan such as a illegitimate person or the dhimmi or harbi who converts to Islam, then all the Muslims are his diwan as the diyah will be taken from baitul mal. -Al-Kasani, Ibid., Vol. 15, p. 255-256. In Al-Bahrur Raiq : The aqilah was defined as the members of his own profession or industry or any group engaging in a particular activity (ahl sin'atihi). -Ibn Nujaym Al-Misri, Al-Bahrur Raiq, (Pakistan:Al Matba'ah Al-Arabiah,W.D.),Vol.8,p. 456. . The word 'gharar'is a technical term uned by the jurists to indicate unreasonable risk or uncertainty in any contract.

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46 47

48

. The Qur'an, Surah Al-An'am 6 : 164. Allah said that : Surah Al-Isra 17 : 15, Surah Fatir 35 : 18; Surah Al-Zumar 39 : 7; Surah Al-Najm 53 : 38. . Ibn Majah, As-Sunan, (Makkah : Al-Maktabatul Faaysaliyyah, W.D.), Vol. 2, p. 890. . Sahih Al-Bukhari, Vol. 8, p. 46; Al-Albani, Mukhtasar Sahih Muslim, (Beirut : Al-Maktahatul Islami, 1987), Vol. 8, p. 47-49. . A Qiyas can be made with the rare incidents in which a wheel, for example, separates from the body of the automobile and hits a pedestrian or another vehicle. Still, the incident here can be traced to somebody's negligence, not like in the case of animals and their instinctive acts.