PORTUGAL
1.Actions to take immediately after road traffic accidents
Police
The police must be called whenever a road accident takes place, unless the
damage is very minor. The police can be reached by calling the national
emergency number –112. This is also the number to call for an ambulance and
the fire brigade.
The police will take charge of the situation and will take down all the
details of the accident and identify all those involved. It is usual for police
to test blood alcohol levels. If there are witnesses, they will only be asked to
provide identification. Copies of the police report may be requested two weeks
after the accident occurred, and the contents of the report are accepted as
legal evidence in the case of litigation.
If
the police are not called to the site of the accident, for example, when the
accident involves material damage only, you are strongly advised to use the
European Claim Form which can be obtained from your insurance company. It is
important that both parties involved in the accident sign the form because the
form is normally used as evidence. It is also important to take down the names
and addresses of any witnesses as well as to give information on the facts of
the accident. It is also advisable to take a photograph of the scene of the
accident.
NB: Do
not sign the European Claim Form if you do not understand the content!
The same applies to other statements on who is to blame for the accident. You
should not sign the form if there are differences of opinion on the facts of the
accident. In such a case it is advisable to contact the police, even if the
accident only involves damage to property.
Hospital
Injured persons will be transported to the nearest hospital that is equipped to
handle such injuries and able to provide all the necessary medical care and
other forms of assistance. It is advisable to take some form of food and drink,
such as fruit, biscuits and bottled water, because although the hospital will
supply food it may not be of the type desired.
Should a fatality occur, the body will be taken to the morgue of the
nearest city. The police will call a family member to identify the body, after
which it will be released for the funeral, except in cases in which a crime is
suspected. In such cases the body will be released after an autopsy has been
performed. A Portuguese funeral
agency will deal with the process of transporting the body. The death
certificate will be issued by a doctor connected with the hospital in question,
the morgue, or the Institute of Legal Medicine.
2. Legal procedure
A person who causes a traffic accident is liable under criminal and
civil law.
Criminal proceedings.
When an accident leads to a death, this is considered to be a public
crime, so in this kind of case it is the state that initiates criminal
proceedings. The family of the victim may become the plaintiff in the case, but
the state undertakes the case and conducts it through prosecutors from the
Public Prosecutions Department (Ministério
Público). If the family of the victim is claiming compensation, they must
engage a lawyer who will bring a civil suit, which will take place at the same
time as the criminal case, and, normally, be resolved simultaneously.
If there is a victim who has suffered physical injury, the criminal
proceedings are undertaken by the victim. However, if the state considers that
there is cause to bring criminal proceedings, it will conduct the case with the
injured person as plaintiff. In this situation, it will also be necessary to
engage the services of a lawyer.
Civil proceedings.
Civil liability in the case of traffic accidents is determined according
to fault liability and strict liability. Strict liability applies to the person
in control of the vehicle, unless the accident involved force majeure or was due solely to fault on the part of the victim
himself or a third party. Force majeure
cannot be invoked if the accident was caused as a result of a defect in the
vehicle.
Whenever an accident involves pedestrians, it is presumed that the driver
of the vehicle is liable, even if in fact he was not to blame, because it is
very difficult to prove incorrect behaviour on the part of a pedestrian.
The person who caused the accident must notify his insurance company
about the accident. Should he not do so, the injured party may make a “third
party notification” directly to the insurance company of the person who caused
the accident, forcing him to acknowledge the event. For this reason you should
always request the presence of the police when any accident takes place, since
if the person who caused the accident does not report it, the police report is
fundamental in order for the insurance company to assume its civil liability.
In order to complete the bureaucratic procedures for making a claim
for compensation under civil law to be paid by the insurance company, it is not
always necessary to engage a lawyer. A lawyer must be engaged in legal
proceedings for claims amounting to € 2,500 or more. Care should be taken in negotiating the honorarium to be
paid, which should not exceed €
75 /hour + VAT + expenses. Honoraria calculated as a percentage of the amount to
be received are not permitted in Portugal.
The subdistrict court (Tribunal de
Comerca) having jurisdiction over the location where the accident took place
is the competent court, regardless of the amount of the claim for compensation.
3. Compensation for damages/time limits
The claim for
compensation can be submitted directly to the motor insurer of the person who
caused the damage. The person who caused the accident must notify his insurance
company about the accident. Correspondence with the insurer can be in English or
French.
If the vehicle is uninsured or
if the liable driver cannot be identified, the claim can be submitted to the
Portuguese Guarantee Fund. The Guarantee Fund must provide cover for loss
resulting from an injury and damage to property. An excess applies in the case
of damage to property.
Time
limits
Criminal proceedings
Various time limits have been
set, depending on the nature of the offence. The time limit for a traffic
violation is shorter than for a traffic offence (for example, driving under the
influence).
Civil proceedings
The time limit for claims for
compensation is 3 years. The time limit starts on the day on which the injured
party becomes aware of the damage. This is normally the day of the accident. If
the accident is based on an offence, the time limits set by criminal law for
that offence will apply, although only if those time limits are longer than the
time limits set by civil law.
4. Damages to be compensated
Medical
costs will in fact only qualify for full compensation if the victim’s own
health insurance does not cover these and if the (hospital) treatment takes
place in Portugal.
Furthermore, travel costs incurred to undergo a medical examination, if
necessary, as well as travel costs incurred to visit the victim, if the visitors
are financially dependent on the victim, will also qualify for compensation.
Lost
income qualifies for compensation. The point of departure is the gross income in
the case of temporary disability. Compensation for lost income in the case of
permanent disability is normally paid out in a lump sum. There is no
standardised method for calculating the amount of the compensation in the case
of permanent disability. Where a housewife/mother is injured, the costs of
domestic help, where required, will also qualify for compensation.
The victim is entitled to compensation for immaterial damage. The
damages for pain and suffering are paid out in a lump sum and depend on
the severity of the injury.
Where the victim dies, the
spouse and children are entitled to damages for pain and suffering. In the
absence of a spouse or children, the claim will pass to the parents, and where
they are no longer alive, the brothers and sisters will be eligible for
compensation.
5. Accidents abroad
With effect from 20 January
2003, the 4th Motor Insurance Directive has been in force regarding
traffic accidents outside your own country. Victims of traffic accidents can now
claim compensation in a simple manner from the insurer of the party at fault.
Such claims are submitted to the representative of the foreign insurer in the
country of the victim: the claims representative. Addresses of claims
representatives are available from the Information Centre. The centre can also
provide information on the compensation body that will make payment if the
insurer fails to designate a claims representative or does not respond to a
victim’s claim.
You can find additional
information on this procedure at this website.
6. Useful addresses
Emergency:
Police, ambulance, fire brigade: 112
Insurance and assistance for vehicles
Information
Centre: not yet in force
The Portuguese Office of the Green Card,
Avenida José Malhoa, lote 1674-3
P—1070 LISBON, telephone 21-721-2951, fax
21-726-1989 or 21-7262352,
INSTITUTO SEGUROS DE PORTUGAL (PORTUGUESE INSTITUTE OF INSURERS)
Avenida Berna, 19 - 1050-037 LISBON
Telephone: 217 903 100
Fax: 217 938 568
e-mail: isp@isp.pt
ACP - Automóvel
Clube de Portugal (Portuguese Automobile Club)
Rua Rosa Araújo 24/6 - 1250-195 LISBON
Telephone: 213 180 100
Fax: 213 577 930
e-mail: acp@mail.telepac.pt
Web: http://www.acp.pt
Organizations that offer support to victims and/or their families:
APAV - Associação Portuguesa de Apoio à Vítima (Portuguese Association for
the Support of Victims)
Rua Comércio 56, 5º-E - 1100-150 LISBON
Telephone: 218 884 732
Fax:
218 876 351
e-mail: apav.sede@apav.pt
Web: http://www.apav.pt
A NOSSA ÂNCORA - Apoio a Pais em Luto
Rua Doutor Almada Guerra, 25 Portela
- 2710-417 SINTRA
Telephone: 219 105 750
Protection of the rights of the
consumer
DECO - Associação Portuguesa p/ Defesa do Consumidor
Rua Artilharia 1 79, 4º - 1250-038 LISBON
Telephone: 213 710 200
Fax: 213 710 299
e-mail: decolx@deco.pt
Web: http://www.deco.proteste.pt
CENTRO DE
ARBITRAGEM DE CONFLITOS DE CONSUMO (ARBITRATION
OF CONSUMER CASES)
Largo Chão Loureiro - 1100-145 LISBON
Telephone: 218 883 535
Fax: 218 883 767
e-mail: lis-arbitragem@ip.pt