Legal Actions Issues - Case Study Example

Read through the following scenario and identify the different types of legal action that may result from it. Arthur attends his place of employmentone morning only to find that he has been replaced by somebody else and his employer tells him he is no longer needed. On his way home he is riding his bicycle along the road when a car, driven by Barry, drives past him at excessive speed and knocks him off his bike. Arthur knows Barry. Barry has never liked Arthur. Arthur sustains a very serious injury and is hospitalised for a lengthy period. Whilst in hospital he has an operation. The surgeon was not suitably trained to undertake the operation and Arthur experiences severe complications. When Arthur is discharged from hospital he discovers that the landlord of his flat, which he was occupying before the accident, has let the flat to another tenant. Arthur applies to the Local Authority for alternative accommodation but is told that he fails to come within the statutory definition of homlessness. In the above there are several issues that need to be discussed on order to be able to discuss the legal actions that might result from the scenario. The issues that require examination are unfair dismissal with regard to the dismissal from work and dangerous driving on the part of Barry. With regard to the injuries of Arthur caused in the accident there needs to be a discussion on the chain of causation to determine whether Barry should be held liable for the suffering caused or whether Arthur has a claim against the doctor for the negligent treatment. In respect of the flat there needs to be a discussion on breach of contract and unlawful eviction as the landlord has let the flat to someone else in breach of the tenancy agreement. In respect of the homelessness there needs to be an examination of the Housing Act 1996 to determine why Arthur is not regarded as legally homeless. Unfair dismissal Unfair dismissal as is suggested is when an employer dismisses an employee without good reason. In some instances unfair dismissal can be regarded as automatically unfair. This might be the case in situations where the employer has not followed a proper dismissal procedure before dismissing the employee1. In some claims for unfair dismissal the employee has to have worked for the employer for at least a year whereas in other case the year rule does not apply. In recent times the law has been changed by placing statutory requirements on the employer before the employee can be dismissed. Previous legislation used to regard the employee more as a servant to the employer than a contributing member of the workforce2. Section 94 of the Employment Rights Act 1996 entitled the employee not to be unfairly dismissed3. If the employer wants to dismiss an employee the onus is on the employer under section 98 of the Employment Rights Act 1996 to prove that the dismissal was fair4. A dismissal can be regarded as fair if it was on the grounds of the capability5 of the person to be able to do the job or their qualification for that role. Dismissal have also been deemed to be fair if they were for behaving in an inappropriate manner6, as a result of redundancy7, the employee is involved is some form of legal process such as a driver who loses his right to drive through some form of proceedings against him or any other substantial reason for the dismissal8. Although such reasons can be potentially fair the employer must follow the proper steps to instigate the dismissal in order for the employer not to face allegations of unfair dismissal. If an employer proposes to dismiss an employee on the grounds of capability9 or qualifications the employer has a duty to consult with the employee and any line manager or supervisor responsible for that employee10. Employees have to be given the opportunity to reach the required standard11 before the employee can be dismissed12. Under the Employment Act 2002 there are a number of amendments to the ways in which an employer should proceed before they dismiss an employee. Schedule II of the Act lists two ways in which an employer can proceed towards dismissal. In Chapter 1 of the Schedule the standard dismissal procedure is divided into three stages that an employer should comply with before dismissing an employee. This has been defined as the Dismissal and disciplinary procedure13. The Employment Act 2002 (Dispute Resolutions) Regulations 2004 section 30 is concerned with contracts of employment. Under this section the employee and the employer must comply with the procedures for dismissal where such statutory requirements are necessary. The employers have a duty under the regulations to issue in writing the reasons why they are considering terminating the employment14 and invite the employee to either attend a meeting to discuss this before the dismissal is enacted or inform the employee of the right to appeal and then hold a meeting if the employee wishes to appeal. section 3 of the Employment Act 2002 (Dispute Resolutions) Regulations 2004 have to be adhered to before an employee can be dismissed. In this case there has been no reason given for the dismissal and the proper procedures have not been followed therefore Arthur might be able to claim unfair dismissal. Dangerous driving According to Archbold (32-37) dangerous driving is when A person drives dangerously when the way he/she drives falls far below what would be expected of a competent and careful driver AND it would be obvious to a competent and careful driver that driving in that way would be dangerous. Under section 2A(1) of the Road Traffic Act 1988 both parts of the above definition must be present for the driving to be considered dangerous. ‘Far below’ is not defined by statute but the danger of causing serious injury to a person of property would be regarded as ‘far below15’. Dangerous driving can be averred if the condition of the vehicle is considered to be dangerous16. If the case is heard in the Magistrates court the defendant can receive up to six months in custody and a fine. In the Crown Court the defendant can be sentenced for up to 2 years. In either case disqualification from driving for at least a year is mandatory along with an order for an extended retest. When deciding on charges the court will take into account the road conditions at the time of the offence. Aggravating factors such as driving at a speed which is inappropriate for the road condition or sudden lane changing and cutting into a line of vehicles are considered to be aggravating features of the offence. In bringing charges against someone for dangerous driving the courts do not have to take into consideration whether the driver had considered the possible consequences of his actions. The charging standard is based on whether a competent and careful driver would have appreciated the obvious danger and tool steps to avoid such danger. The court laid down the aggravating and mitigating circumstances that would be considered in relation to a charge of dangerous driving in the case of R v Cooksley and others [2004] 1 Cr App R (S) 1. Some factors only apply if the dangerous driving leads to the death of another. In the case of R v Elwood-Wade (1990) 12 Cr App R (S) 51 the court found that the only aggravating factor in this case was the excessive speed of the driver and therefore decided that imprisonment was not necessary. However, in cases where the dangerous driving has resulted in an injury the gravity of the offence is increased as was the case in R v Steel 96 Cr App R 121, CA. The same would also be true if the driver has previous convictions for speeding and the only aggravating factor is the excessive speed as was the case in R v Underwood [2005] 1 Cr App R (S) where the defendant received a fine of £400 and disqualified for three and a half years. In the situation above it states that Barry was speeding and as a result knocked Arthur off his bike causing him serious injury. It is also stated that there is a lot of bad feeling between the parties. It is likely that the courts would consider the speed and injury of the defendant as aggravating factors which would definitely lead to Barry’s disqualification as well as a fine and the possibility of a prison sentence. Chain of causation In order to decide whether Barry should be liable for the excessive suffering of Arthur it is necessary to consider the chain of causation. If it can be proven that the chain of causation has been broken then Arthur would be able to take actions against the hospital for the negligent treatment. If the court holds that the chain has not been broken then Arthur’s action for compensation would be against Barry. If the accused can show that the chain of causation has been broken they can avoid liability for the injuries caused17. In order to do this there has to have been a supervening event. Successful claims that the chain has been broken have been brought where the victim would have survived had it not been for the negligent actions of the doctor treating the injured person18. However there are also several other cases where the courts have deemed that the chain has not been broken even though the victim might not have died if the medical staff had been more diligent as was the case in R v Mellor [1996]19. Case law has accepted a break in the chain following the actions of a third party20 or of the victim21. Wrong medical treatment has also been deemed as causing the chain to have been broken22. In the case of Mellor mentioned above the jury found the defendant guilty of murder after the victim died two weeks after being attacked. This was despite the fact that had the medical staff given him oxygen he might not have died. By contrast in R v Jordan23 the court held the injuries inflicted by the defendant were no longer an operative cause of death and the defendant’s conviction should be quashed. In this particular case Arthur did not die from his injuries but suffered greater harm then anticipated due to the actions of the surgeon. It is possible that the court might hold that the chain of causation has been broken and therefore Arthur would have to take an action against the hospital. However, the hospital could argue that the chain was not broken as the operation was needed as a direct result of the accident and therefore despite the fact that the doctor made errors the initial injury was caused by Barry and he should be liable. Unlawful eviction In law before a person can be evicted from their home the landlord must comply with certain legal requirements. If the tenancy is an assured shorthold tenancy the landlord is required to give the tenancy 2 months notice to leave under the Housing Act 1988. The landlord has to give reasons for the eviction and if the eviction is to occur whilst the fixed term of the tenancy is still in force the landlord must prove the reasons for the eviction. With an assured tenant the notice period can be as little as 14 days depending on the reason for the eviction. Under s27 of the 1988 Act the tenant can claim damages if the eviction is deemed to be unlawful. Under the Protection from Eviction Act 1977 an eviction is unlawful if the landlord does anything that interferes with the peace or comfort of a tenant or persistently withdraws or withholds services that the tenant needs to live in the house. In this particular situation no reason was given for the eviction and the proper notice period has not been adhered to so Arthur would be able to claim for unlawful eviction. Homelessness Under section 175 of the Housing Act 1996 a person is regarded as homeless if he has no accommodation available for his occupation, in the United Kingdom or elsewhere, which he (a) is entitled to occupy by virtue of an interest in it or by virtue of an order of a court, (b) has an express or implied licence to occupy, or (c) occupies as a residence by virtue of any enactment or rule of law giving him the right to remain in occupation or restricting the right of another person to recover possession. From the above it is likely that his application as a homeless person was rejected because technically he is not homeless as the landlord was not entitled to evict him. He would be expected to pursue an action against the landlord for wrongful eviction. However, since the landlord has allowed somebody else to move into the property it would be difficult to order specific performance to give the tenancy back to Arthur. Arthur should contact the local authority explaining that although technically he still has somewhere to live he is unable to exercise that right as the property has now been given to someone else. Arthur could rely on subsection 2 of the Housing Act 1996 to assert this right. Under this section it states A person is also homeless if he has accommodation but (a) he cannot secure entry to it. Using this Arthur should be able to prove he is homeless and that the Authority has a duty to find him accommodation. 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