Frequent Questions: Road Accidents

WHAT SHOULD I DO IN CASE OF A TRAFFIC ACCIDENT?

First of all, and whenever possible, stay calm and composed and try to assess the extent of the damages caused by the accident. If you notice material and physical damages, immediately call the POLICE and FIREMEN using the NATIONAL EMERGENCY NUMBER 112. Try and be objective and succinct when providing information about the accident.

WHAT SHOULD I DO IN CASE OF A ROAD ACCIDENT?

WHAT YOU SHOULD ACT AS FOLLOWS:

1. Obtain the identification details of the other parties involved – driver and vehicle – at the accident site, and the information about the insurance, in particular the name of the insurance company and the policy number (since April 1995 it is compulsory to place in the motor vehicle a label containing the information that allows the immediate identification of the insurance company);

2. Identify eyewitnesses (very important);

3. If possible, seek agreement: that is done through the completion by the two drivers of the Car Accident Mutual Statement, which must also be signed by both drivers. The delivery of this document to both insurance companies is essential for the operation of the DCA system – Direct Compensation Agreement. The purpose of this system is to accelerate the settlement of the claims to better serve the users, making it possible for each policyholder to regularize the claim directly with his/her own insurance company. The DCA system applies as long as there are only two vehicles involved in the accident, there is no bodily injury and the resulting property damage is not higher than 15.000.00 Euros. When completing the Car Accident Mutual Statement, it is not necessary for the driver involved to plead guilty. In the absence of liability of the driver, the statement does not result in any negative impact on the insurance premium. Each driver must keep a copy of this statement to deliver to his/her insurance company;

4. In case of inability to sign the mutual statement or whenever there are personal injuries, the presence of the police authorities should be requested.

WHAT SHOULD I DO IN CASE OF AN ACCIDENT?

In the place of the accident, it is important to remain calm, be composed and objective.

IF THERE IS ONLY MATERIAL DAMAGE

1. When the accident only results in material damages to the vehicles, the drivers involved must complete the Car Accident Mutual Statement, answering all the questions made, in which the indication of the interveners, their insurers, how the accident took place and the listing of eyewitnesses are particularly important. This accident statement must be delivered to the insurance company as soon as possible, but not later than 8 days after the accident occurred.

2. You may waive the presence of the police (112), although it may be useful in the case of a serious accidents or when no liability is assumed.

3. You must request the identification data of the drivers involved in the accident: name, address, phone number, ID number, driving license.

4. You must request the identification data of the vehicle: vehicle brand, registration number, insurance company, policy number. Always make sure that the drivers involved in the accident have a valid insurance policy.

5. Whenever possible, identify eyewitnesses: name, address and phone number.

IF THERE ARE INJURIES

1. When the accident causes injuries to people, request the presence of the police authorities through the NATIONAL EMERGENCY NUMBER 112, so that the respective occurrence statement can be drawn up.

2. Leaving the scene of an accident may in some cases constitute a crime, unless you go/are taken to the hospital.

3. You must request the identification data of the drivers involved in the accident: name, address, phone number, ID number, driving license.

4. You must request the identification data of the vehicle: vehicle brand, registration number, insurance company, policy number. Always make sure that the drivers involved in the accident have a valid insurance policy.

5. Whenever possible, identify eyewitnesses: name, address and phone number.

ACCIDENT WITH A FOREIGN-REGISTERED VEHICLE

1. You must request the presence of the police authorities (112), so that the respective occurrence statement can be drawn up.

2. You must request the identification data of the drivers involved in the accident: name, address, phone number, ID number, driving license.

3. You must request the identification data of the vehicle: vehicle brand, registration number, insurance company, policy number. Always make sure that the drivers involved in the accident have a valid insurance policy.

4. Whenever possible, identify eyewitnesses: name, address and phone number.

ACCIDENT WITH A MOTOR VEHICLE WITHOUT INSURANCE

1. If the driver responsible for the accident is driving without a valid insurance, you must request the presence of the police authorities (112), so that the respective occurrence statement can be drawn up.

2. You must request the identification data of the drivers involved in the accident: name, address, phone number, ID number, driving license.

3. You must request the identification data of the vehicle: vehicle brand, registration number, ownership title.

4. Whenever possible, identify eyewitnesses: name, address and phone number.

5. In this specific case, the claim should be addressed to the Fundo de Garantia [Motor Insurance Guarantee Fund].

IMPORTANT QUESTIONS

WHAT IS THE VALUE OF THE COMPENSATION I CAN RECEIVE?

The amount of indemnity will be calculated taking into account the gender, age, annual income, incapacity periods (to be defined medically), pain and suffering, with the Decree Law 291/2007 being merely indicative

WHAT IS USUALLY COVERED BY THE INSURANCE AND HOW IS THE PAYMENT OF DAMAGES PROCESSED?

With regard to material damages, the principle in force is the restoration of the situation prior to the accident and the payment of all expenses and damages caused by the accident.

Management of Motor Vehicle Claims

A “Road Accident” can be defined as a causal event from which injuries to people or property damages result.

The accidents that occur in the circulation of vehicles (even if they are stationary) are road accidents.

The word viação in acidente de viação (“road accident” in Portuguese) derives from the Latin “vectio”, linked to the notion of transporting, rolling or travelling

The definition covers all vehicle accidents, whether or not they occur on public roads – but the European Statement mentioned above does not apply to accidents occurring on private roads that are not open to public transit (e.g. a farm).

But these accidents are also covered by the terms of the Civil Liability, Articles 483 and following of the Civil Code.

The opening of the accident claim usually starts with:

  • Participation of the insured;
  • Claim by the third party (victim, injured, hospital, trailers, etc.);
  • Car Accident Mutual Statement signed by the drivers involved;
  • Communication to the authorities (e.g. judicial procedures).
Analysis of the Car Accident Mutual Statement

The filling in of a Car Accident Mutual Statement has been consecrated throughout Europe as the appropriate means to formalise the participation or claim of an accident, resulting from Article 30 of the Uniform Insurance Policy. While this statement does not constitute exclusive or definitive proof of the circumstances of the accident, it is intended to speed up the settlement of the claim.

If this statement is signed and completed by both parties, the accident may be regularised under the terms of the Convenção IDS – Indemnização Directa ao Segurado [DCA Convention – Direct Compensation Agreement] provided that:

  • There are only two active actors;
  • The compensation or total loss is less than 15.000,00 Euros (for each of the actors with right to a compensation);
  • The respective insurance companies are affiliated to the system;
  • There are no physical injuries;
  • The accident ocurred in Portugal, with vehicles registered in Portugal;

In this system of compensation, each party involved must deliver the respective duplicate to his/her own insurance company, which will be in charge of the settlement of the claim with his/her insured party.

The liability and compensation will be assessed using a Tabela Prática de Responsabilidades [Practical Table of Liabilities], and claims that do not fall under this Table will not be compensated.

EVALUATION OF THE DAMAGES

The evaluation consists of assessing the pecuniary value of the damages arising out of the accident entitling to compensation.

"Damages" – Articles 483 to 510 and 562 and following from the Civil Code – Harm to the assets or interests of a third party.

MATERIAL DAMAGES

Material damages are normally assessed by a specialist expert (motor vehicles experts, with technical and mechanical training), with the assistance of computerized systems (Eurotax, Audatex, etc.).

Motor vehicle expert studies are usually held in car repair shops chosen by the vehicle owners, and reports or estimates of repair costs are drawn up.

Values are indicated, including the VAT, and the estimated number of days to perform the repair. Usually, photos and copies of the documents of the vehicle are added.

Other material damages, such as to clothing, objects, luggage, helmets, etc., are assessed against their value when new, as well as the depreciation resulting from time of use.

In the case of repair, whenever the value of the repair is less than the difference between the vehicle’s market value and the value of the salvage vehicle, compensation for total loss should be pressed for.

Example:

Repair value = 4.000,00 €
Market value = 3.000,00 €
Salvage value = 1.000,00 €
2.000,00 €

Thus, 2.000,00 Euros < a 4.000,00 Euros : compensation = 2.000,00 €

Above all, in this form of regularisation as well as in claims of civil liability, we must act with good judgment and some flexibility.

In fact, our case-law is still prevalent in the sense that we are compelled to perform the reparation whenever the third party so wishes.

The reason behind the concept of total loss results from the conjugation of Article 562 of the Civil Code, which requires that reparation of the damage restores the situation prior to the accident – natural restoration rule, with Article 566 of the Civil Code, which allows the compensation for damages to be done in cash.

  • Whenever natural restoration is not possible (e.g. in case someone died);
  • When the natural restoration does not completely cover all the damages (e.g. serious physical injuries in which it is not possible for the victim to fully recover);
  • Or when the natural restoration is excessively expensive for the debtor.

This is the exception to the natural restoration rule invoked for situations of total loss.

In line with Article 119 of the European Statement, which obliges insurers, courts and authorities to report the cases of destruction of vehicles of which they are aware of to the competent authorities, as well as with Decree-Law No 2/98, which considers as salvage the motor vehicle which suffered damages that affect its safety conditions or whose repair value exceeds 70% of the vehicle’s market value at the date of the claim.

But the courts have not followed this view, arguing that “the victim, receiving the market value of his/her vehicle at the date of the accident, will be unable to acquire another one, while it was sure that, with the vehicle he/she had, he/she could go along.”

PHYSICAL INJURIES

Physical damages may be pecuniary or non-pecuniary:

Property damages – detriment to interests with property nature
  • Decrease in property (emergent damage);
  • Or frustration of its increase (loss of profit);

The following are damages likely to be evaluated monetarily:

  • Medical expenses, transports, adaptations in the household, third party assistance (cost), etc.
Non-property damages – detriment to interests that cannot be monetarily evaluated; detriment to assets extraneous to the property.
  • Physical pain, quantum doloris, grievance, annoyance, worry, scare, anxiety, loss of personal affirmation (limitations on the exercise of cultural or sport activities), aesthetic impairment, etc.
  • Eligible for compensation when, given the severity, it deserves to be covered by the law – see Article 496 of the Civil Code.
1st – Direct pecuniary damages

In this category are included, for example, the value of the motor vehicle repair, the value of the replacement of objects, the value of the wages lost during the time of hospitalisation or ATI (Absolute Temporary Incapacity), the value of the transport expenses.

This category can also include property damages emergent from mobility disruption.

It is the responsibility of the party liable for the damages to order the repair of the damaged vehicle, and also to compensate the owner of the vehicle for the damages he/she suffered due to the deprivation of the vehicle.

As a rule, when the insurance companies assume that their clients are liable for the damages, they make available an identical vehicle (rent a car) to the user of the damaged car that needs it for his/her profession or family use on a daily basis.

When the insurance company orders the appraisal of the damaged vehicle to be performed, the date to start the repair and the deadline are fixed, together with the repair shop.

But cases exist where the insurance company does not issue the repair order (conditional), since it may still be handling the claim or the repair shop may be delayed.

In these cases, the insurer will be liable for the damages incurred between the date of the accident and the date on which the repaired vehicle is delivered to its owner.

In these cases, the principle in force is the proof of the actual loss (if you rented a car, if you used a taxi or public transport, etc.). The mere annoyance of mobility disruption, as moral damage, has not been accepted by our courts, although there is evidence of a progressive reversal of this trend...

On the other hand, there are agreements between the Portuguese Insurance Association and associations of users or transporters – this is the case of ANTRAM (heavy goods and freight vehicles), ANTROP (heavy goods and passengers vehicles), ANTRAL (taxis) or even companies (for instance CTT, the Portuguese postal service) – defining a form of assessing the damage and the daily value, in pecuniary terms, of the mobility disruption.

2nd – Indirect pecuniary damages and moral damages

Let’s analyse the case of the disabilities.

In medical-legal terms, the victim’s disability (functional limitations) can be temporary or permanent, and the former may be partial temporary disability (PTD) or absolute temporary disability (ATD).

Permanent disabilities – resulting from permanent functional limitations caused by the accident – can be total or absolute (APD) or partial (PPD).

The indication of ATD, PTD and respective periods as well as the discharge of the victim – defined as the moment at which the patient’s clinical situation is final, and he/she does not require further treatment – are acts of medical competence.

The same is valid for the definition of permanent disabilities. In this category the following should be considered:

  • Permanent disability – of a general nature (for the undifferentiated tasks of daily life);
  • Permanent disability to work.

All permanent disabilities are defined by analogy to or overlap with the Tabela Nacional de Incapacidades [National Table of Disabilities], which is a document that, in the context of work-related accidents, defines the incapacity resulting from the victim’s injuries and their consequences.

However, while permanent disabilities to work imply the calculation of the loss of income from the work of the victim, permanent disabilities of a generic nature are translated in terms of moral damages.

In the case of permanent incapacity to work, compensation will result in the establishment and payment of an amount defined taking into consideration the production of an income throughout all the active working life time of the victim adequate to what he/she would receive if it were not for the injury, and its corresponding degree of disability, and adequate to repay the loss suffered.

For example, a 25-year-old who earned 1,000.00 Euros per month and was awarded a 15% PPD, should receive compensation that allows him, in terms of capital and interest, to receive 150.00 Euros per month up to the end of his active life, at which time that amount comes to an end.

This should also take into account the interest rate, the indexation of wages to the inflation rate and their progressive convergence with the UE average, and even the evolution of the retirement age and the expectation of career development.

Faced with so many and varied factors, one can already guess the difficulty of defining the value of this compensation. But the truth is that such values are defined by jurisprudential criteria, which are constantly evolving.

For the moment, and imposed by the EU Directives, insurance companies are discussing the application of a scale for deaths and disabilities, harmonizing the practical application of the factors indicated above, and allowing greater safety and fairness in the arbitration of this type of compensation. Moreover, this scale already exists in many European countries, namely in France and Spain.

It should be noted that, even if the victim continues to receive the salary he/she had before the accident that led to the disability, compensation should be awarded for property damage, since his/her disability implies greater effort and lower professional autonomy.

Work accidents in conjunction with road accidents

A road accident may also be a work accident, namely if:

  • It takes place during working hours and in the working place
  • It takes places while commuting to or from the work place (in itinere accident)
  • It takes place while performing services ordered by or consented by the employer (and in the other circumstances foreseen in Article 6 of Law 100/97, from 3/9).

In such cases, the injured party may apply for two compensations (one to the Labour Court, the other to the ordinary court), and afterwards choose the one that he/she deems more convenient, since the two are not cumulative (in addition, the Labour Court does not cover moral damages).

CIVIL LIABILITY / ROAD ACCIDENT

As a rule, civil liability is based on fault, and the injured party is responsible for proving the fault of the other party (Article 342 of the Civil Code).

This is not the case when the injured party enjoys a legal presumption in its favour (Article 350 of the Civil Code). Below we will see examples of presumption.

In any case, contraventions to the Highway Code constitute presumptions of fault or negligence, thus allowing fault to be attributed to the drivers involved in an accident taking into account the materiality and dynamics of the accident.

For example, if a car is stopped at a red light and the vehicle behind it hits its rear, it violated Article 24 of the European Statement with respect to speed limits, since the speed it was running did not allow it to stop in the clear space visible in front of it.

The issue of fault is at the core of the handling of the claim, as compensation for the damages caused by the accident.

Civil liability consists on the obligation to compensate for the damages caused by road accidents.

As can be read in almost all court decisions, this obligation only exists if the following conditions are met (Article 483 of the Civil Code):

• THE FACT

The fact must be voluntary (likely to be under the control or governed by the will).

That is why natural events, which cause damage due to force majeure or irresistibly fortuitous actions (cyclonic winds, lightning, etc.), are excluded from civil liability.

This fact may result in an action or in an omission.

The omission is a cause of damage whenever there is the legal duty to perform an act that, in all certainty or probably, would have prevented the damage to be caused.

• UNLAWFULNESS

Violation of the right of a third party law or violation of a law that protects third party interests (legal provision).

• FAULT

To be at fault means, as we have seen, to act in a way that deserves the reprobation of the law.

Fault is what is decided when it is concluded that the party responsible for the accident, by his/her capacity and diligence in the concrete circumstances of the situation, could or should have acted otherwise.

• DAMAGE

As we have also seen above, the damage consists in the harm, in the loss suffered by the aggrieved party, in the harm caused to legally protected interests (right to life, right to physical integrity, right to property, for example).

• CAUSAL CONNECTION BETWEEN THE FACT AND THE DAMAGE

Not all damages arising from the wrongful act are the responsibility of the agent, but only those that he/she caused.

A classic example of this is the accident from which results mild injury to a third party. But when the victim was on the way to the hospital, the ambulance drives out of balance and the victim dies because of this accident...

The question of the causality is regulated in Article 563 of the Civil Code, which adopts the Theory of the Adequate Causality.

In the abstract, the fact must be an adequate cause of the damage.

Basically, it has to be established a posteriori that a given damage was a normal, typical and adequate consequence of a given concrete fact. The obligation to compensate only exists in this case.

Similarly, as a rule, there is no obligation to pay compensation without fault. The fault is assessed on the basis of the behaviour pattern and the disrespect for the legal norms (for example, the European Statement).

However, in relation to certain sectors of the social life, it was found that such a rule generated injustice.

Thus, the Risk Theory or the Objective Responsibility was born: those who create a risk to their advantage, using dangerous things (gas, electricity, motor vehicles, etc.), must bear the respective harmful consequences, since they derive benefits from it.

Thus, liability for risk (Article 499 and following of the Civil Code) attributes to the responsible party the obligation to compensate the aggrieved party, although he/she might not be at fault, since the damages resulted from dangerous activities.

This exceptional obligation only exists in the situations defined by the law – Article 483, 2 of the Civil Code:

  • Damages caused by agents (Article 500 of the Civil Code);
  • Damages caused by organs and agents of state and other public legal persons; Article 501 of the Civil Code (example, potholes not identified);
  • Damages caused by animals (Article 502 of the Civil Code);
  • By motor vehicles, in what comes to the own risk (example, case of sudden illness of the driver) (Article 503 of the Civil Code);
  • In vigilando fault (Article 491 of the Civil Code) – may be relevant in accidents with children;
  • By electrical or gas (or water) installations, buildings or trees – Articles 492 and 493 of the Civil Code;

The issue of contributory faultis also important.

It can happen, and often happens, that faulty conduct from two or more agents causes the accident.

For example, if both drivers travel in opposite directions and on the track central line. In these situations, 50% of the fault must be attributed to each driver, resulting in an obligation to compensate 50% of the respective damages.

Lapse of rights (Articles 327 and 498 of the Civil Code)

As a rule, compensation rights have a limited time of 3 years from the date of the accident.

In the case of fatal accidents or accidents that have caused serious bodily injuries, compensation rights will expire within 5 years.

The lapse period begins to run on the date of the accident or when the injured person became aware of his/her right and, when there is death or serious injury, as of the first criminal decision on the merit (closing of the case or sentence).

The lapse period against a minor is only completed one year after the minor reaches adulthood (Article 320 of the Civil Code) if the parents or legal representatives have not taken legal action.

ACCIDENT ABROAD

Portuguese motor vehicles abroad

In August 2003 the 4th Directive came into force with the aim to overcome the barriers related to linguistic difficulties and lack of knowledge of the applicable legislation. In the case of Portuguese drivers, this Directive allows for the compensation of the injured person to take place in Portugal.

To that end, there are three entities in each Member State:

  • A representative of the insurance company of the vehicle responsible for the accident;
  • An Information Center (Portuguese Insurance Institute);
  • A compensation body (working with the Portuguese Insurance Institute).

Operating mode:

  • After identifying the person responsible (and collecting evidence elements, etc.), contact in Portugal the information agency (ISP-Instituto de Seguros de Portugal – Portuguese Insurance Institute).
  • ISP will indicate the representative for accidents in our country from the insurance company of the foreign motor vehicle, to whom you shall address the claim for compensation.
  • The insurer has three months to respond.
  • If there is no representative of the insurance company in Portugal or it does not respond within three months, the claim must be sent to the Portuguese compensation body – which has two months to respond.
  • If the faulty party has not been identified, the driver must register and obtain elements of the accident, and seek compensation from the equivalent body in the foreign country.

This practice is only valid in the UE Member States.

ADDITIONAL INFORMATION



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