Road Accidents and Indemnities

Road Accidents and Indemnities

Road Accidents

The circulation of motor vehicles constitutes an inexhaustible source of non-contractual civil liability and, consequently, the obligation to repay. Indeed, accidents caused by cars are constant, and, in fact, for this reason, it is mandatory under Portuguese law that all cars in circulation have motor vehicle civil liability insurance to guarantee the repair of damage caused by them.

Special attention is required:

  1. Rito Advogados has selected the most relevant legal information on the Rights of Victims of Traffic Accidents. Throughout this page, at the end of each theme, you will be able to consult the respective publication and, thus, deepen each of the pieces.
  2. The purpose of making this content available is to allow all customers to access and consult the basic principles of claims settlement and their rights.
  3. With 30 years of experience and thousands of victims represented, we advise all victims and their families to always resort to specialist lawyers and never, at any time, try to resolve their situation by their means or accept the amounts advanced for settlement. Compensation amounts can rise substantially when a specialist car insurance lawyer appropriately discusses and studies the process. Do not compromise your rights.

Settlement of car claims 

The adequate settlement of a claim can raise legal problems that affect the payment of compensation to victims of a road accident, which is even more severe if it results in injuries with serious bodily harm or even death.

And in this sense, the victim must take into account the following:

1. Completion of the friendly declaration

The friendly statement must be filled in carefully, confirming that all data and messages are correct. In case of disagreement about who is really to blame for the accident, it is preferable to call the authorities so that a report of the incident is drawn up.

Need a Friendly Statement?

2. Accidents with uninsured vehicles

The law provides that, in the absence of car insurance, the Automobile Guarantee Fund (FGA) firstly ensures the repair of damage caused by the vehicle; therefore, the FGA responds to third parties injured in road accidents when there is no compulsory motor vehicle liability insurance for the car causing the accident or the driver is unknown.

In summary, the Automobile Guarantee Fund assumes compensation for the injured parties when the vehicle causing the accident is not insured, but also if they flee and it is not possible to identify them. Here, it becomes essential to call the police and stay at the scene. Otherwise, you might have more difficulty in proving what happened.

3. Car accident claim

The occurrence of a road accident must be reported to the insurance company as soon as possible.

The law establishes eight days from the date of the accident to send all the data and documentary evidence about the accident; in these cases, it is preferable to claim in writing, and the injured party may opt for the digital route (email) or by letter registered so that it is possible to prove the documents sent. Furthermore, victims can and should demand from insurance companies that all information is also be sent in writing.

4. Medical assistance to the victim

Contrary to what happens with accidents at work, in road accidents, insurance companies are not obliged to provide medical services to the victim; however, in the vast majority of cases, the insurance company ends up providing the benefits of clinics and hospitals in your medical network (providers).

This does not mean that the victim can receive treatments in any other services through the National Health Service (SNS) or other private clinics of his choice. In these cases, and since the insurance company is obliged to repair all damage resulting from the road accident, it must reimburse the injured party for all medical expenses, provided that they are duly supported by the respective invoice for the services offered or the treatments above. Therefore, reimbursement of medical expenses should be as quick as possible.

5. Prove the causal link

The right to compensation of an injured party with bodily harm implies the existence of a causal link between the event (road accident) and the damage (physical injuries). Such a question can arise whenever previous injuries may have been aggravated.

The assessment of the injuries is the most crucial phase for claiming compensation, as there may be differences in the opinions of the medical experts who assess the victim.

To that extent, the intervention of a specialized lawyer is also essential here to ensure that the medical opinions and examinations are by the law and the applicable tables. Our office has partnerships with doctors specialized in the assessment of body damage, which help monitor our clients to guarantee that such review is correct and adequate.

6. Incapacity of the profession

Whenever the road accident results in a permanent disability (partial or absolute) that impairs the injured party’s productive capacity or requires increased efforts in the performance of his usual activities, he is entitled to receive compensation for future property damage, that is, for them that you will no longer receive due to these limitations, whether physical or psychological.

7. Reasonable proposal for compensation

Once the claim for civil compensation has been made to the insurer, the latter must present a Reasonable Proposal proposal and provide a copy of the documents on which it relied to raise this amount. Of course, the obligation to submit the said proposal presupposes that the insuInsurer took a positionInsure liability for the accident, assuming it and, therefore, being responsible for paying all damages suffered as a result of the accident.

If the insurer accepts responsibility and uninsurance with the tabInsurerin Ordinance No. 377/2008, it calculates the “reasonable amount” to repay the injured party by presenting the same amount in writing.

It hapInsurerowever,, in tInsurerthe assumptions for calculating the proposal as mentioned above involves the medical assessment of the injured party carried out by the clinical services of the insurer itself or at the benefit of the insurer itself, which, in most cases, differ from the actual clinical status of the victim. . And on the other hand, the result of said calculations also differ from the compensation to Insurer would be entitleInsurerInsurersprudential practiInsurer.

8. Lawsuit

Suppose the victim chooses to accept the indemnity proposal made by the insurance company. In that case, this means that he is considered fully compensated (indemnified), extinguishing his right to claim anything from that company.

Suppose the victim does not accept the compensation contemplated in the insurer’s proposal. In that case, he can then resort to the courts, which will fix him compensation according to the damages and injuries he presents. Such recourse to the courts can be made through civil action or Insurer’sest grafted ontoInsurer’ssssssssssess if there is room for it.

Legal deadlines for road accidents

Victims of road accidents must know the legal deadlines to be respected. Non-compliance with these deadlines may have consequences regarding rights and duties in the relationship between the injured party and civil and criminal persons responsible for road accidents. Therefore, it is essential to pay attention to the main deadlines.

Deadlines to be met by the Insurer

  1. First contact with the victim: The insurer, as soon as the accident is reported to it, must, within two days, contact the injured parties indicated in the said report, taking note of their identification, Insurers, and damages insurer
  2. Insurer regarding liabiliInsurer damage: 30 working days.
  3. Position regarding liability for bodily harm: 45 days from the date the compensation claim is made if there is already medical discharge and the damage is fully quantifiable.

Deadlines to be met by the Victim

  1. Claim to the insurer:  up to  8 days from the date of the accident, under penalty of being liable for damages.
  2. Presentation of criminal complaint:  6 months,  counting from the harmful event/accident date. 
  3. Civil action:  3 Insurer counting from the theInsurerd accident or possibly five years if the unlawful act that gave rise to the accident constitutes a crime (serious bodily harm or death). 

The expiry of said deadlines entails the loss of the right to compensation. 

What are the victim’s rights?

The realization of Civil Liability with the competent insurer to repair damage resulting from a road accident implies knowledge of the rights of the injured parties, as well as the amounts required for each type of damage resulting from the accident. In a very brief way, those injured in a road accident are entitled to compensation for Insurerperty damage and insurer

a) Compensation for Property Damage

Property damage is understood to mean damage caused to the vehicle, which did not cause the accident, that is, repairing the damage to restore the state in which it was before the accident. However, the respective owner is still entitled, if there is any devaluation of the commercial value of the same, to demand the amount corresponding to such depreciation. Still, in material damages, the injured parties also have the right to be compensated for the time they were deprived of the vehicle, that is, deprived of its use. Finally, they can also claim with the insurers all the objects that, due to the accident, were damaged or irretrievably lost. However, the vehicle’s repair or compensation for its total loss is among the most common damages. What is meant by the Total Loss of the car? There is a total loss of the vehicle when the insured asset disappears, is wholly destroyed, or suffers damage whose repair is materially impossible or technically not advisable. There is also a total loss when the estimated value for repairing the damage sustained, added to the salvage value, exceeds 100% of the market value of the vehicle less than two years old, or the estimated value for repairing the damage suffered, added to the value of the saved exceeds 120% of the market value of the vehicle over two years old.

b) Compensation for Bodily Injury

Within the scope of bodily harm, repairing the same takes on a much more severe discussion since we are talking about injuries and sequelae that affect the physical integrity of the victim of a road accident, whether he is the driver of one of the vehicles, a passenger or pawn, consequences that sometimes accompany her for the rest of her life, limiting her activities, functions and personal and family life. And to that extent, the injured have a “hundred number” of items for which they must be compensated, ranging from the incapacity with which they were affected, the period of functional deficit for work, the need for monitoring for day-to-day tasks -day, the pain suffered (Quantum Doloris) the aesthetic damage, the sexual loss, the need for future medication, among others.

Each of the items has its valuation, depending on the degree presented and the personal characteristics of each injured person, implying an individual assessment, case by case, which cannot be neglected.

Compensation Calculation

One of the most critical issues within the scope of insurance law and the one that most certainly worries the victims is the amount of compensation to which they will be entitled.

Effectively, determining the quantum of compensation is not easy and should never be carried out by approximation, comparison, or hunch. This is a matter arising both from specific legislation and from jurisprudential practice that varies depending on several factors, and it can be said that only those who work daily with such calculations and with the corresponding court decisions are truly qualified to determine the amount of compensation as a result of damage/accident.

In Portugal, there are tables provided for in special legislation, according to the type of claim (road, work, life, etc.), but which are currently merely indicative for insurers to present their proposal within a reasonable period and price.

However, the courts tend to decide independently, and with the use of equity, there are currently significant variations to such tables.

We will present below, by way of example, a summary of the main indemnities resulting from road accidents since the matter of accidents at work is confined to its own and very specific legislation.

Factors for variations in the amount of compensation

Several factors make the amounts of compensation fluctuate, especially in car claims, when there are bodily injuries or death:

a) Age of the injured party

The age at which the victim suffered the accident and was affected in his physical capacity is the first determining factor of the value of the indemnity. Indeed, and as expected, compensation for a 20-year-old who becomes paraplegic will differ from compensation for an 80-year-old woman if she remains with the same disability.

And this is because from the outset, the earning capacity of the first is much greater, and consequently, the future equity loss will also be. But also, in terms of non-pecuniary damages, the reflection of disability at 20 years old does not compare with the review at 80 years old.

The same will be said in the case of death, as in the social reaction to an end; losing one’s life at 20 has a different repercussion than losing life at 90.

b) Income earned

The value of the victim’s earning capacity is always linked to the value of the compensation, as this must restore the injured person to the financial situation in which he would have found himself had it not been for the accident.

Thus, if the injured party no longer earns a certain income or salary or loses the opportunity to pursue a career in a particular area, the compensation must cover this situation and replace it. Here, too, there will be a variation according to each victim’s current and future income.

Within the scope of this calculation, arising from the purchasing capacity, both salary losses and future property damage, as well as lost profits, are repaid.

c) General permanent disability

The permanent disability the victim will be affected by is also one of the main factors that will vary the compensation. To fix such a disability, it is necessary to resort to medicine and, more specifically, to medical-legal experts, who will determine, according to the injuries already consolidated, what degree of disability will affect the injured person either in his profession or in all acts of daily life.

d) Functional impact on working life

The impact or influence that permanent disability has on the victim’s ability to work is one of the most important factors for calculating compensation.

This impact is measured at five levels:

  1. No rebate: means that despite the permanent general disability, the damages that the injured party presents do not interfere with their work capacity, not affecting them in the least.
  2. Increased efforts: the injured person has a disability that allows him to continue to exercise his profession, although with an increased effort concerning the situation before the accident.
  3. IPAPH w/ reconversion: the incapacity for the usual profession with reconversion is the incapacity in which the injured person is affected and prevents him from carrying out his typical activity or work. However, he has the means, qualifications, or knowledge to convert his career into another aspect or action.
  4. IPAPH without reconversion: incapacity for the usual profession, without conversion, is the incapacity of the injured party that prevents him from practicing any occupation, whether due to its seriousness or lack of means, qualifications, or knowledge to allow him to convert the activity.
  5. Absolute Permanent Disability (IPA) means the injured person is in a state of total and absolute incapacity for any and all professional or personal activities, having no autonomy or independence.

The compensation to be awarded varies substantially depending on the level of these repercussions, but always taking into account factors such as age and salary/income earned by the injured party.

e) Amount of Pain

The Quantum Doloris is an indicator used in body damage assessments to quantify and value accident victims’ physical and psychological suffering during the traumatic event and throughout the instituted clinical treatments. It must be weighted according to the number and severity of injuries; length of stay and number of surgical interventions; the size and complexity of the recovery period; the type of treatments (whether they are more or less painful); among others. Its range ranges from 1 (very slight) to 7 (very important), and it is also assessable by medical experts.

In Portuguese legislation, quantum doloris is only considered from grade 4 onwards, corresponding to moderate.

f) Aesthetic Damage

Aesthetic damage occurs when the accident results in damage to the appearance and appearance of the injured party. It is also non-pecuniary damage corresponding to physical and aesthetic integrity offenses. In any case, aesthetic damage is evaluated by medical experts on a scale of 1 to 7, with one being very slight and seven being very important.

Aesthetic Damage is damage to the victim that affects him personally, as it has to do with all the characteristics of the injured party. Effectively, a “hundred number” of factors, such as age, gender, profession, etc., must be considered to determine the amount of compensation resulting from aesthetic damage. For example, a scar on the face of a 25-year-old photographic model will indeed have more value than a scar on a 50-year-old construction worker.

g) Loss of personal affirmation

This is yet another item of non-pecuniary damage that translates into the impact of the accident on the will to live, joy, and relationships of the injured party, as well as limitations on the performance of activities or acts that go beyond the mere exercise of a professional activity. or family life, such as sports activities, social activities or mere recreational exercises, such as cycling, hiking, among others. All these limitations represent a necessary deprivation in the dimension of the victim as a person. Its assessment is based on a 5-point scale.

i) Days of incapacity with hospitalization

Finally, in the non-pecuniary damages, we have the time the injured party was hospitalized. Such compensation is calculated according to the days of hospitalization and declared salary/income.

j) Biological Damage

It constitutes a compromise between pecuniary and non-pecuniary damage and consists of injury to the physical and mental integrity resulting from the accident, and it is a loss of health, a loss in the ability to use the body in the wide variety of activities and tasks that any man -Medium carries out in your life.

Physical damage is always payable regardless of the loss or otherwise of production capacity.

l) Dano Dead

In cases where death occurs due to an accident, family members also debate the amount of compensation to which they are entitled. Also, here there are several factors to take into account and the final value varies according to the tables provided for in legislation and jurisprudence or practices in the same courts.

In summary, the factors to be taken into account when calculating death compensation are:

  1. Right to life: although human life is neither quantifiable nor replaceable, Portuguese law contemplates compensation for the loss of life due to an accident. The amount of payment for the loss of the right to life varies according to various factors, such as the age, health and will to live, and the professional situation of the victim. As a rule, court decisions regarding compensation for the loss of the right to life range between 50,000.00 and 100,000.00 euros, according to the abovementioned factors.
  2. Own Moral Damage: represents the victim’s suffering due to his perception of death and the pain in the last moments of life. It may vary according to the time between the occurrence of the accident and death: minutes, hours, or days, the respective value also ranging between € 1,000.00 to € 10,000.00 approximately.
  3. Inherited non-pecuniary damages: Damages corresponding to sadness, anguish, and all the feelings associated with losing a loved one are also compensated. The right to such compensation rests with the spouse and children or, in the absence of these, other descendants. The non-pecuniary damage related to the spouse may vary according to the length of the marriage, between €22,000.00 to €28,000.00. As for non-pecuniary damages to children and other descendants, they can range between €11,000.00 and €20,000.00.
  4. Future property damage: As in the case of bodily injury, in which compensation is payable for the property damage resulting from the wound, also in the event of death, the family members who depended economically on the victim are entitled to be compensated for the loss of income that his death brought them. Here too, it is necessary to determine the victim’s income, age, how long she would contribute to the maintenance of the beneficiaries, etc. The final compensation will depend on the interaction of all these factors.
  5. Funeral expenses: All expenses directly resulting from the victim’s death are reimbursable.

Conclusion: all the determining factors for compensation, as well as all the amounts mentioned above, were mentioned by way of example since they are intrinsic and inseparable from the event that gives rise to the obligation to repay, as well as personal and family characteristics, social and professional of the injured party, so they do not depend on simple mathematical calculation. For this reason, it is always necessary to consult and monitor personal situations by specialized professionals who are qualified to advise and sponsor the processes as mentioned above, under penalty of a problem that is already harmful in itself, giving way to a case of harm to the victim or family members.

Undoubtedly, one factor that most influences the calculation of compensation for accidents in Portugal is the salary of the injured party, but what if the injured party was unemployed at the time of the accident?

Deadly Car Accidents

Death resulting from a road accident constitutes unspeakable damage since human life represents an irreplaceable and irreparable asset. Thus, the basic principle of the right to compensation never works, in its entirety, in the event of death since it is objectively and subjectively impossible to repair the damage and restore the situation before the accident.

In any case, Portuguese law contemplates a form of compensation or mitigation of damage through payment for the loss of the right to life, for the suffering of the victim before death, and the moral injuries of direct family members (children, parents, spouse). In addition to these damages, called non-pecuniary damages, for death resulting from a road accident, there is also compensation for financial damages whenever the victim contributed to the domestic economy or had dependents in his/her care.

All these damages must be duly accounted for following calculations in force in the applicable legislation and the jurisprudence in practice. 

Compensation payable to passengers

A road accident does not only affect vehicle drivers. In many cases, passengers suffer even more severe injuries than drivers. When a passenger suffers any damage resulting from a road accident, he is always entitled to compensation because he cannot be blamed for the accident.

Contrary to what happens with the driver, who may be excluded from the right to compensation if he is responsible for the accident concerning passengers, the issue does not arise. However, what has been verified is that many of the injured, namely passengers of a particular vehicle involved in a road accident, end up waiving compensation for fear of harming the driver, especially when it comes to a family member or friend.

This fear is unfounded as if there is no cause for “exclusion” from the insurer’s liability, such as, for example, lack of license, insurance, or driving under the influence of alcohol, it is the insurance company that has to assume the responsibility. Payment of compensation due.

Another widespread situation of accidents with passengers is accidents in public transport. In these cases, the injured party must also claim compensation from the vehicle insurer.

Accident by running over

Several questions arise in cases where the accident victim was not the occupant of a vehicle but a person walking on the road (pedestrian).

The first is to know who caused the accident and, to the insurer, the initial rInsurer’s’sssssssssnt to the insurer and public authorities is of the utmost importance, as there are many cases in which drivers and, later on, insurers try to distribute or even attribute the responsibility for the production of the accident to the pedestrian himself exclusively.

Now, in addition to the fact that, in the context of road traffic, pedestrians are in a much more fragile and vulnerable position compared to a motor vehicle, also at the time of the accident, victims of being run over do not, as a rule, have the -physical and psychological – conditions to report the circumstances in which it occurred.

That is why it is strongly recommended, in the event of a car being run over, that legal follow insurer carried out withInsurererice entities immediately after the accident. 

Road Accident at Work

Whenever, for the injured party, the accident is both a road and work accident, as he is, at the time, at the service of his employer, he has the same right to be reimbursed either by the insurer responsible for the vehicle that caused the accident or by the insurer to whom responsibility for accidents at work was transferred.

Currently, such legislation is enshrined in Law nº 98/2009 of September 4, which defines an accident at work as an accident that occurs in the place and time of employment and directly or indirectly produces bodily injury, functional disturbance, or illness of which reflects reduced work or earning capacity or death.

It should be noted that those two compensations are not cumulative; they are complementary, and the injured party may receive remuneration from the work accident insurance company for disability, health expenses, travel expenses, lost wages, etc. For accidents insurer, All other damageInsurererone does not contemplate, such Insurer example, non-pecInsurererological damage or non-transferable income.

Accidents On The Road

Accident In Itinere, also known as an accident on the way or on the way, is any accident that occurs on the journey usually used by the worker between his or her usual or occasional residence and the place of work and vice versa, during the period traditionally spent for that purpose.

This means that, for us to classify an accident as a work accident, the worker doesn’t need to be at his workplace or for it to occur during working hours, and, therefore, this type of accident is often also a road accident at the same time.

It is considered an accident that occurs:

  1. In case the worker has more than one job between any of the workplaces;
  2. Between your usual or occasional residence and your place of work;
  3. Between the locations referred to in the previous paragraphs and the home of payment of the remuneration;
  4. Between his residence or his place of work and the place where the worker must be given any form of assistance or treatment due to a previous accident;
  5. Between the workplace and the place to eat;
  6. Between his usual residence or place of work and the business where, by determination of the employer, the worker provides a service related to his work.

It is also considered an accident at work that occurs when the worker has made a detour or interruption in his usual route, provided that it is to satisfy the worker’s meetable needs or due to force majeure or unforeseeable circumstances.

motorcycle accidents

Road accidents involving two-wheeled vehicles are, as a rule, more severe than accidents with light vehicles. This is because drivers and occupants are physically more exposed and, therefore, more susceptible to serious bodily injury. For this reason, motorcycle drivers and occupants must be well aware of their rights, not least because it is not because they travel in two-wheeled vehicles that the rights to compensation for damage are different.

First of all, about the occupants, the right to compensation always exists, regardless of whether or not another vehicle was involved in the accident. This means that if a person was the occupant of a two-wheeled vehicle and an accident occurred, resulting in damage, he is always entitled to claim compensation for repairing said damage.

As for the motorcycle driver, the right to compensation depends on the degree of fault of each intervener. Suppose the responsibility fell exclusively to the third-party vehicle. In that case, you can claim all the compensation for your damages, but if the fault is shared between you and the third party, the balance is reduced in the same proportion.

Car accidents under the influence of alcohol or drugs

Driving under the influence of alcohol is an offense provided for in the Highway Code, the consequences of which extend to several levels, namely the coverage of compulsory motor insurance.

First of all, it should be noted that the fact that the driver has a higher level of alcohol than allowed does not mean that he is responsible for the accident. Responsibility for the production of the accident – fault – must be assessed in each specific case according to the circumstances in which it occurred and the acts the said driver performed.

However, it remains true that the greater or lesser degree of alcoholemia will also determine a greater or lesser presumption that the accident occurred due to such a condition. The same happens concerning driving under the influence of drugs or narcotics.

Car Accident Abroad

Whenever there is a road accident outside Portugal, the injured parties are entitled to compensation for all damages.

It is essential to verify in advance whether the country where the accident occurred adheres to the Multilateral Insurance Convention, in which case the green card regime is in force. Therefore it is easily verifiable which insurer is responsible and to intervene in this one, as well as the Portuguese Green Card Office in case of legal dispute.

Insurance companies authorized to market compulsory motor vehicle liability insurance in the European Union must appoint a claims representative in each member state, except the country where the company has its head office. Since the accident occurred in a non-member State, it is essential to verify whether it has agreements in terms of road traffic or not.

Judicial and Extrajudicial Sponsorship

Monitoring and advising the injured parties, whether in the extrajudicial phase with the insurers or the judicial stage already in court, requires lawyers to have a thorough knowledge of the applicable legislation, the rules in force, and the necessary arguments so that the injured party itself a victim of a harmful event, does not also become a victim of technical incompetence or lack of knowledge of the rights that assist it.

Why do you need a car accident lawyer?

Lawyers, in addition to extensivInsurerience in the areaInsurerer and the respective compensation, whether in court or out of court, have in-depth knowledge of all the necessary procedures for the values in practice for the various types of damages, as well as partnerships with essential medical experts for the survey of the bodily injuries presented and respective sequelae.

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