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DAVID BURKE
(life partner and sole executor of the will of
Angelo Jacinto Jose Do Rosario Athaide deceased)
Claimant
- and-

RAYMOND ERNEST ROBERTS
1st Defendant
- and-

ARLA FOODS
2nd Defendant
 

Circumstances:

On 26 August 2003 Mr. Angelo Athaide died after a collision on Romford Road, London E15 between his motorcycle and an Arla Foods' milk float being driven by Mr. Raymond Roberts. 

Mr Athaide was on his way to his work as a specialist clothes designer with his same sex partner of 14 years, Mr David Burke.

Mr Roberts had parked close to the kerb, but facing the wrong direction to the line of traffic, when he attempted to turn across Romford Road to go down a side road, Glenavon Road. At roughly the same time that he moved off the traffic lights where Mr Athaide was waiting changed from red to green.

Because Mr Roberts was facing the wrong way and there was a slight bend on the road he was not able to see the traffic lights or the first 100 yards or so of Mr Athaide's travel. Similarly Mr Athaide would not have seen him.

The collision occurred on Mr Athaide's side of the road, by which time the milk float was roughly perpendicular to the line of travel of Mr Athaide.  As a result of the collision Mr Athiade suffered severe injuries, including a fractured skull, and was mercifully rendered unconscious by the collision.

Mr Burke was also driving to work and came across the scene of the accident within a couple of minutes.  He saw Mr Athaide breathing at the scene. Mr Athaide was taken to the Royal London Hospital where, upon admission, he was pronounced dead. He was 37 years old at the date of his death.

Mr Burke came to White Dalton Motorcycle Solicitors after losing faith with his previous solicitors, Lyons Davidson.

Damages:

The general elements of the claim were not large, some £5,500 at most. However, there were two further potentially significant elements: "dependency" and "bereavement" claims.

Issues:

The issues revolved around the fact that Mr Athaide and Mr Burke were a same gender couple, rather than a mixed gender couple, and the legal interpretation at the time of that relationship by the Human Rights Act 1998 and the Fatal Accidents Act 1976. The Fatal Accidents Act 1976 has now been amended by the Civil Partnership Act 2004.

The old wording of the Fatal Accidents Act allowed a dependency claim involving a co-habiting couple, provided they were living together as "husband and wife". Prior to the implementation of the Human Rights Act this was strictly interpreted by the English Courts as applying only to different gender couples and the Courts would simply not have allowed a claim by Mr Burke for dependency.

However following the implementation of the Human Rights Act it was our view that the position had changed.

The Human Rights Act incorporated the European Convention of Human Rights into domestic law. There were two 'Articles' in the Convention which particularly affected Mr Burke's claim: Article 8 (the right to family life) and Article 14 (general prohibition on discrimination). Under section 3 of the 1998 Act, where there was a conflict between domestic law and the Convention, the domestic law "must be read and given effect in a way which is compatible with the convention rights".

After the Act came in to force the Courts had interpreted some statutes that include the phrase “co-habiting as man and wife” to include same gender couples. Despite the fact there was no actual case law specifically dealing with the Fatal Accidents Act, we were confident the Court would adopt this approach in this case, particularly as the Civil Partnership Act had since confirmed this position. However, as the accident occurred before the Civil Partnership Act it was still a grey area.

Finally, the Fatal Accidents Act also allowed a statutory compensatory figure of (presently) £10,000 for a "bereavement payment" to a "husband or wife" of the deceased.  Again, Mr Burke was technically neither by the strict interpretation of the Act's wording. But again, for the reasons mentioned above, we were confident in this as well.

It was the other side's position that to succeed Mr Burke had to establish that one or more of the Convention rights was engaged before any interpretation under section 3 of the Human Rights Act could be applied. They argued that the claims were in effect financial claims and not a 'right to family life' claim under Article 8. As such Mr Burke could not show Article 8 was engaged in the circumstances of this case and, as a result, neither was Article 14 and hence section 3 interpretation was irrelevant as there was nothing to interpret. They suggested the case of M v Secretary of State for Work and Pensions [2006] 2 AC 91 gave support to their argument.

Following a roundtable meeting in November 2007 settlement was agreed with Mr Burke receiving in excess of £30,000. Whilst this money can never replace what Mr Burke lost, had the matter gone against him at Court he would have probably received no more than £4,000. 

The simple fact is that the Fatal Accidents Act, until the Civil Partnership Act, discriminated against same gender couples and, for those people who have potential fatal accident claims before 2004, still does. However, for those with a potential claim after 1999 this case offers at least some hope and Mr Burke's hope that some good may come out of this tragic event may at least be achieved.

Solicitors for Mr Burke: White Dalton Motorcycle Solicitors
Counsel for Mr Burke: Mike George and Lizanne Gumbel QC

Also reported on Legal and Medical - The online magazine for the medico-legal profession, to view the article please click the following link: http://www.legal-medical.co.uk/news/11748.html

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