Religion permeates law and liability in the countries of the Middle East. This does not, however, translate into identical standards in all countries, as an examination of the rules applying in two neighbouring states – the Kingdom of Saudi Arabia and the United Arab Emirates – clearly demonstrates. One is anchored in tradition, while the other has opened up to legal procedures. Case law has now been successful in compensating all the consequences of bodily injury, both present and future, sustained by accident victims.
>>
Liability and Compensation for Bodily Injury Under Islamic Law
Patrick Le Roy
Patrick Le Roy joined Gen Re Cologne in 1997. He is a Second Vice President and claims executive in the Corporate Claims Unit, where he is responsible for the markets in Belgium, Luxembourg, the Netherlands, North Africa, the Middle East and Poland. pleroy@genre.com Tel. +49 221 9738 218
79
Saudi Arabia Saudi Arabia is a religious state that follows the teachings of the Wahabi branch of Sunni Islam. Besides the general purpose, traditional rules of Islamic law, a specific law applies to road accidents. There is no Muslim legal terminology corresponding to the notion of liability under civil law. Solutions to questions of liability have to be sought in two bodies of rules – on the one hand the Daman, which makes it possible to identify the person liable, and on the other, the Diya, which makes it possible to determine the method of compensation. The Daman is a collection of various principles that deals with the law of contractual liability or the law of tort liability. This results in a general rule according to which compensation must be paid for any damage or injury caused to others, with the exception of pain and suffering (the compensation of which would be deemed to be undue enrichment). The system of liability depends on the immediacy of the damage in relation to the action that caused it. Compensation for immediate or direct damage is automatic on the basis of no-fault liability, whereas compensation for indirect damage obeys the rules of liability for fault. Compensation for direct damage is natural. The question of the existence of fault is asked within the framework of our Western legal culture built around the notion of fault, but is not self-evident. Why should compensation for damage be made dependent on fault? Muslim law does not ask this question, especially where damage is the direct consequence of a specific act attributable to an identified person who is then referred to as the mubashir. As for direct damage, this is referred to as
mubasharah. A person causing indirect damage is referred to as mutasabib. There is no definition of direct damage. As is often the case in Muslim law, inspiration is drawn from concrete examples that serve as an illustration. Jurisconsults thus give the following example: if someone cuts a strap supporting a lamp which then falls and breaks, the cutting of the strap constitutes the direct damage, while the breakage of the lamp constitutes indirect damage following the fall. This condition of immediacy has presented difficulties in doctrine with regard to the classification of the damage resulting from a negative occurrence, that is to say a failure to do something. Certain jurisconsults are in favour of classifying it in the category of direct damage, but this view is not shared by all. The logical consequence of this strict liability is that persons who are incompetent because of their age or mental state are required to meet the same obligations as competent persons. Compensation for indirect damage assumes the implementation of subjective liability. It is not the act itself that is the source of the obligation, but the fact that the act involves fault. The subjective nature of this liability means that children and incompetents cannot have the quality of mutasabib. As far as children are concerned, it is not possible to appeal to a system of liability for others, as Muslim law rejects the principle behind this. The notion of fault, in the technical sense that we know, does not exist in Muslim law, which uses the concept of ta’adi. This is a broad concept encompassing any illicit act that causes injury or damage to others. It is an act carried out without justification or which exceeds an individual's right to encroach upon the rights of another. This is a complex notion, which is not to be confused with and is not limited to the illicit act.
80
In fact, behaviour may be allowed under sharia, and therefore be lawful, but nevertheless lead to a duty to indemnify if the act from which the injury or damage originated encroaches on the rights of others.1 For example, taking food from someone else to survive is allowed under sharia, but the person committing this lawful act must nevertheless compensate the person from whom he takes the food. It may be that damage has been caused by the simultaneous involvement of a direct and an indirect originator. The basic principle of Muslim law governing this situation is that where damage is caused by a direct and an indirect originator at the same time, it is the direct originator alone – the mubashir – who must pay for its repair. There is also the possibility of combined fault committed by both the direct and the indirect originator. In this case, both have to repair the damage, but not based on the seriousness of the fault. The judge will be primarily interested in the direct or indirect nature of the involvement of the originator of the damage, and only then in the seriousness of the fault of the originators of the damage. The system of liability applying to road accidents in Saudi Arabia follows both from the rules mentioned above and a doctrine that draws on the historical sources of jurisprudence, and the application of the rules of the Nidham2 on traffic, which refers to modern notions. As the motorcar is a relatively recent invention, jurists have had to study the system of liability that was applied in the past to damage resulting from the use of other means of transport. In the overview, dealing with the rectification of damage caused directly, we saw that the damage must be repaired by the mubashir (the direct originator of the damage) without making reference to the notion of fault.
This rule also applies to road accidents. Each driver must repair the other's damage, but each must bear that part of the damage that results from his own action (and from his own fault) and repair the damage caused through his action to the other vehicle involved. This ends in the equal division of responsibility for damage or injury when two vehicles are involved. If another driver or third-party mutasabib is at fault, the person responsible will also be obliged to provide compensation as well. The Nidham (law) on traffic refers to the notion of fault, which has to be interpreted in the light of the classic theory of the ta’adi. Article 195 of the Nidham on traffic states in general terms that “liability results from negligence, from a lack of distrust [sic] or from non-observance of the Nidhams”. Article 197 states that “if the accident is caused by the fault of the victim or a third party or that of the driver, the liability will be shared according to the fault of each. However, if it is impossible to determine the role of the fault of each, a half share of the liability shall be attributed to each of them.” This fault corresponds to the notion of ta’adi, often used by judges, and generally means that the behaviour in question constitutes an attack on the rights of the third parties or a dereliction of duty. The following decisions from the case law of the Sharia Court of Riyadh may be quoted to illustrate the notion of fault: driving in the wrong direction3, driving a vehicle despite a state of disablement4, driving without due care and attention5, and failure to give way to another vehicle6.
>>
81
The United Arab Emirates The system of liability is defined in Articles 282 to 317 of the Code of Civil Transactions. Article 283, derived directly from classic Islamic law, states that the direct originator of damage is liable for its repair, without any need to determine fault. This corresponds to the notion of mubashir already mentioned. According to the provisions of traditional law, the originator of any indirect damage is only liable for its repair if he was at fault (mutasabib). Article 284 sets at out the principle whereby any damage caused jointly by a direct originator and an indirect originator must be made good within the framework of a system of no-fault liability. The objective nature of the direct originator’s liability is mitigated by the means of exoneration provided for by Article 287 of the same Code. Where a person proves that the damage was caused by a natural disaster, an unavoidable accident, force majeure, the action of another person or the action of the victim, they cannot be held liable for repair unless there is a legal provision to the contrary or an agreement between the parties. Judges are also given the possibility of reducing the compensation due to a victim in cases where they were partly to blame for their own damage (Article 290). Where several people are liable, the judge may order them to make good the damage in proportion to their respective fault, or else jointly. The legal system of the United Arab Emirates also differs considerably from the system of Islamic law in that it recognises the principle of liability for the actions of others. The principle of liability for the actions of persons under one’s control is enshrined in Article 313 of the Code of Civil Transactions, while liability for the actions of animals is defined in a fourth subsection of that Code.
Finally, on this point it should be noted that the Emirates’ legislators have achieved an astute mix which manages to respect the traditional standards deriving from Islamic law while at the same time integrating modern legal techniques into national law.
The Assessment of Injuries The assessment of injuries has obvious financial consequences for victims, but also for the persons responsible. The principle of prison for debt still exists in Saudi Arabia and in the Emirates. Where a fatal accident occurs, the person responsible is immediately imprisoned and is released only when he has paid blood money (Diya) to the victim’s family. Where the originator of the damage does not have sufficient funds or is not insured, he must throw himself upon the Prince's mercy and remain in prison until the latter has taken care of his debt or decides to have him freed after a few years. Unlike Saudi Arabia, which refers above all to a system of compensation prescribed by the Sunna, the United Arab Emirates have a differentiated, rather intricate system akin to the form of a Russian doll. The rules of compensation deriving from the Sunna are applied, but are topped with rules on compensation stemming from civil law, which also allow victims to be awarded additional compensation. This complexity is increased by the fact that there is no well-defined body of Islamic doctrine that would apply to the calculation of compensation. The situation is somewhat clearer in Saudi Arabia on account of the fact that one school of Islamic law has become established there, namely the Hanbali School, which endeavours to respect the letter of the texts of the Sunna. In the United Arab Emirates the situation is more complicated, as the doctrine is open to the different schools of Islamic law. Depending on the nationality and education of a judge who is competent to hear a case, one may find different solutions being applied to situations
82
that are nevertheless similar. The federal nature of the United Arab Emirates also constitutes a not insignificant element of diversity. It may be useful to first outline the Islamic law applying to compensation, and then to look at how case law in the Emirates links these standards with modern rules for assessing loss or injury. The Diya in the case of death: The Diya is an obligation laid down by the Koran.7 It is not for men to question its basis or nature, etc. However, one can say that the Diya does not represent compensation for the loss of a biological reality. Muslim law is loath to value the human body, which is a commodity that is not for sale: “what is not a commodity cannot be valued in goods” and “one soul cannot replace another”. A human life is in itself irreplaceable. The Diya is therefore one element, but it is not without flexibility. In fact, the victim’s family can show compassion for the party responsible, take into account his poverty and accept compensation that is lower than the Diya. Conversely, in order to appease the desire for revenge of the victim’s family or tribe, the party responsible has the option to offer compensation higher than the Diya. Muslim law does not recognise the existence of indemnifiable psychological damage. The damage resulting from an attack on dignity and human feelings cannot be valued or repaired. The loss of earnings of the deceased person's next of kin following his/her death is not an indemnifiable loss either. Only the expenses incurred following the death, such as living expenses, travelling expenses or treatment costs can be assumed by the party responsible.
Calculation of the Diya in Muslim Law The reference unit used when the first rules of Muslim law were being drawn up was the camel, and thus the Hadith states that “the Diya for a life is one hundred camels”. Saudi law interprets the price of a camel. The Diya for a Muslim man is equivalent to SAR100,000 (USD26,671); for a Muslim woman or for a non-Muslim man it stands at SAR50,000 (USD13,335), and at SAR25,000 (USD6,667) for a non-Muslim woman. On this point, the government of the United Arab Emirates drew its inspiration from the teachings of Imam Abu Hanifa, which differ from those of the other Islamic schools.8 The President of the Federation approved a law prescribing the application of a single Diya for all the Federation’s courts of law, without making reference to the plaintiffs’ religion or their sex. The Diya was fixed in 1983 at AED70,000 (USD19,061) by Decision No. 3 of the Supreme Council of the Federation. This amount was subsequently reviewed in 1991 (AED150,000, USD40,053) and again in 2003.9 Its current value is AED200,000 (USD54,454). The Diya serves as the basis for calculating the compensation for a certain number of bodily injuries that are defined more or less precisely. In the case of injury or the loss of an organ, the compensation is calculated from that due in the event of death. Where there is just one organ, like the nose or the tongue, the compensation due is the Diya, i.e. AED200,000.
There are known cases of compensation being calculated by taking several Diyas into account, the highest known being SAR300,000 (USD80,000) in Saudi Arabia, which was paid on the basis of considerably old case law. Judges do not have any power of discretion, and discrepancies can and do arise, such as the distinction between the physical loss of an organ and the loss of function of an organ. Where the organ is one of a pair, like the eyes, the ears or the lips, only half the Diya is due when only one of the two components is affected. For multiple organs, the same algebraic logic is followed: the loss of a finger is compensated with a tenth of the Diya, etc. The partial loss of a limb or of its function must be compensated proportionately. If there is a total loss of speech, hearing or sense of smell, the Diya that serves as reference for compensation follows the same logic as for the loss of the organ itself. The loss of sight in just one eye leads to the payment of half the Diya. Injuries to the head are classified according to their seriousness. The first five are compensated according to a judge’s assessment. The others are subject to the following tariff: Mudihah: deep wound that exposes the bone; compensation 1/20th of the Diya, i.e. five camels Hashima: where the bone is broken; compensation 1/10th of the Diya, i.e. ten camels Munaqila: injury that dislocates the bone; compensation 1/6th of the Diya, i.e. fifteen camels Mamoomah: injury affecting the surface of the brain; compensation 1/3rd of the Diya. Damighah: injury that exposes the brain across its surface; compensation 1/3rd of the Diya. According to the Hanbali School, facial lacerations must give rise to payment of twice the Diya as the direct damage causes a change of an aesthetic nature. It is therefore fair to pay more compensation than for a wound to the scalp, since the scar left by the latter is concealed by the hair.
>>
83
Regarding injuries to the rest of the body, a distinction is made between injuries to the abdomen, the back, the chest and the hips – Jaifah – which lead to the payment of one third of the Diya according to the Hadith “for Jaifah, one third of the Diya”, and injuries to other parts of the body for which it is up to a judge to determine the compensation. According to one opinion, case law should be geared towards the payment of two-thirds of the Diya in cases where the injury involves piercing of the body right through.10 Permanent after-effects constitute harm that can and must be compensated in a different way. The Supreme Court censured11 the decision of one court that had decided that the compensation awarded was inclusive of the Diya whereas, by their nature, the after-effects12 were not to trigger compensation under the Diya or Arsh system. This is the affirmation of an autonomous system of compensation outside the traditional norms of Islamic law. In order to be compensated for economic loss, a plaintiff must prove that he has suffered a loss of a financial nature. To be indemnifiable, this damage must be actual or highly probable. Where losses of future income are reasonably probable, the courts basically accept the principle of their being compensated.
These losses can be direct or else based on the expenses incurred in looking after a third party on account of the person responsible. Where a child is involved, the court must take into account not only the expenses incurred in looking after them but also of the fact that they will not be able to help their parents in their old age.13 Similarly, a man may claim reimbursement of the expenses incurred to have his children looked after following the death of his wife.14 Where parents can demonstrate that their income has diminished or their needs have increased through the loss of a child over and above what they have received in the form of the Diya, they may claim additional compensation.15 The Supreme Court’s case law on future losses allows the principle, apparently without restriction, that a victim may submit a new claim when an element of injury that is new but still the result of the accident manifests itself. The principle laid down by the Court is the following: “Where compensation has been awarded by virtue of a state that was aggravated due to a subsequent event, the injured party may submit a claim for compensation and the compensation awarded in the first place will not be considered final, the basis of this being that the injury that was compensated as part of the initial procedure has changed in terms of both its extent and its nature”.16
=
84
The notion of aggravation in itself is not troublesome, but the broad nature of its definition is. “It may be that when compensation is awarded, future injury is not expected to occur and is consequently not taken into account in the calculation of the compensation. Should circumstances arise in which it is clear that the injury has worsened, then it is legitimate for the third party to submit a new claim.”17 This leaves little leeway for prescription, which basically occurs once fifteen years have elapsed.18 Finally, unlike Saudi law, which does not recognise mental suffering in the case of death, the Supreme Court,19 on the basis of Article 29320 of the Code of Civil Transactions, allows compensation to be paid in respect of the mental suffering of parents and spouses. The same goes for compensation in respect of mental suffering in the case of injury. Here too, unlike under Saudi law, the Federal Supreme Court21 allows mental suffering to be compensated in the case of injuries. We therefore see that Muslim law governs the question of compensation of bodily injury sometimes by referring to a rigid scale, as in Saudi Arabia, and sometimes by giving judges or the parties discretionary power, as is the case in the United Arab Emirates. Case law there is characterised by considerable diversity, inherited from the many schools of Islamic law, but also by a dynamic, which draws its inspiration from modern techniques of the law of compensation. This entails considerable potential for inflation, reinforced by the relatively far-reaching possibility for victims to take advantage of any worsening of their condition or of a circumstance that had not been taken into account when their compensation was originally awarded. Today, we are seeing compensation in the range of AED1,000,000 (USD367,000) being paid to the victims of serious bodily injury. In 2004 the Abu Dhabi Court of Appeal approved the compensation of AED2,500,00 (USD681,198) to someone handicapped for life. This is much more than the value of the Diya, which, until just a few years ago, served as the benchmark for assessing serious bodily injury in this region.
1
Muslim law, literally “the way that leads to the source”. The Nidham on traffic was promulgated by Royal Order No. 49 dated 23 December 1971 and contains 210 articles divided into 8 chapters. 23 April 1983.
10 Bodily 11 High
Injury Liability, p. 9, loc. cit.
18 Art.
2
Court of the Federation, Civil Appeal, No. 234 of 23 May 1989. permanent disablement results in this case from limitation of the movements of the ankle following a fracture of the leg bone. High Court of the Federation, Civil Appeal No. 19 of 15 February 2001. Court of the Federation, Civil Appeal No. 110 of 4 February 2001. Court of the Federation, Civil Appeal No. 167 of 31 December 1996. Court of the Federation, Civil Appeal No. 566 of 13 April 1999. Court of the Federation, Civil Appeal No. 333 of 25 February 1996. “Future damage might not be expected at the time of awarding compensation and is not therefore taken into account when assessing damage. If circumstances arise which make it reasonably clear that the damage has been aggravated, then the aggrieved party may file separate proceedings to claim compensation.”
12 The
473 of the Code of Civil Transactions: “A right shall not expire by the passage of time but no claim shall be heard if denied after the lapse of fifteen years without lawful excuse, but having regard to any special provisions relating hereto.” It should be noted here within this comparative study that the notion of time-barring does not exist in Saudi law. Court of the Federation, Civil Appeals Nos. 121, 171 and 186 of 23 and 24 March 2002. Civil Appeals Nos. 19, 20 and 21 of 15 April 2001. Civil Appeals Nos. 453, 507 and 508 of 21 and 18 November 2001. 293: “The right to have damage made good shall include moral damage, and an infringement of the liberty, dignity, honour, reputation, social standing or financial condition of another shall be regarded as being moral damage.” Court of the Federation, Civil Appeals Nos. 348 and 432 of 22 and 17 April 2002. Civil Appeal No. 433 of 18 February 2001. Civil Appeal No. 295 of 6 February 2001.
3 4 5 6 7
13
19 High
5 April 1993. 20 November 1996. 11 June 1984.
14 High
15 High
20 Article
“It is not for a believer to kill a believer except (that it be) by mistake; and whosoever kills a believer by mistake, (it is ordained that) he must set free a believing slave and a compensation (blood money, i.e. Diya) be given to the deceased's family, unless they remit it as a charity.” Surah An-Nisa’: 92. Mohammed Jamil Ak Bik, Bodily Injury Liability, p. 7. Federal Law No. 9 of 2003.
16 High
17 High
21 High
8
9
85