I've had a road traffic accident: what rights do I have?

After a road traffic accident, between the shock, the pain and the paperwork, it is normal not to know where to begin or what can be claimed. This article explains, in broad terms, the rights of anyone injured in a road traffic accident in Portugal and what is usually at stake when there is compensation.

The right to be compensated

Where an accident results from another driver's fault or, in certain cases, from the inherent risk of operating a vehicle, the person who suffered the harm is, as a rule, entitled to be compensated. And that right does not cover only the damage to the car. It extends both to property damage and to personal injury, which tends to be the most significant for the injured person.

The underlying idea is simple to state, even if not always simple to achieve: the compensation should, as far as possible, restore the situation the person would be in had the accident not happened.

What types of damage can be claimed

Not all damage is of the same nature, and that distinction carries practical weight in the amount to be received.

Pecuniary damage

Pecuniary damage covers losses with an economic dimension: the repair or write-off of the vehicle, medical and pharmacy expenses, transport, and the income lost through being unable to work, both present and future where foreseeable.

Non-pecuniary (moral) damage

Non-pecuniary damage, also called moral damage, covers losses that do not translate directly into money but deserve redress on account of their seriousness: physical and psychological pain, suffering, aesthetic damage, the loss of quality of life. The amount is set on the basis of equity, weighing the specific circumstances.

Biological damage

Biological damage, increasingly recognised as a distinct head, reflects the impairment of the person's physical and mental integrity in itself. It tends to be compensable even where there is no direct loss of income, because the injury constrains the person's life, demands greater effort of them and reduces their capacity, whatever they earn.

Who pays: the insurer and the Fundo de Garantia Automóvel

As a rule, the compensation is provided by the liable party's insurer, through compulsory motor third-party liability insurance. It is normally to the insurer that the claim is addressed.

But there is not always an insurer to answer the claim. Where the driver at fault is unknown (for example, having fled the scene) or was driving without valid insurance, there is the state motor guarantee fund (Fundo de Garantia Automóvel), which ensures, within certain limits and conditions, the compensation of personal injury. In certain situations it also covers property damage. It is a mechanism designed precisely so that the victim is not left without any protection.

Why you should not accept the first offer without review

It is common for the insurer to put forward a compensation offer while things are still at an early stage. It can be tempting to accept it to settle the matter quickly, but caution is advisable.

The critical point is this: the offer often comes before it is known what the person's final condition will be. Without that, the amount offered may not reflect the real harm.

The medical report and the consolidation of the injuries

A fair assessment of personal injury depends on knowing where the injuries have settled. That is why the consolidation of the injuries is decisive: the clinical point at which recovery stabilises and it becomes possible to assess what has healed and what has remained as a permanent after-effect.

It is also why the medical report and all the clinical documentation are so important. They describe the type of injury, the treatment, the periods of incapacity and the after-effects. Keep everything from the very first day: emergency admissions, examinations, invoices, sick notes. This evidence is often the basis of the entire claim.

Time limits and the way forward

The right to claim does not last indefinitely. As a rule, the right to compensation for a road accident is subject to a limitation period of three years, running from the date on which the injured party became aware of their right, even if they do not yet know who is liable or the full extent of the damage (Article 498(1) of the Portuguese Civil Code). If the event that gave rise to the accident amounts to a crime for which the law lays down a longer limitation period, it is that period which applies (Article 498(3)). Because the way time is counted depends on the circumstances of each case, it is worth confirming the deadline early, for the specific case, rather than assuming.

As for the route to follow, there are typically two paths:

• Out-of-court route: the claim, with its supporting reasons and evidence, is submitted to the insurer or to the Fundo de Garantia Automóvel, seeking an agreement. This resolves many cases without going to court.
• court route: where there is no agreement or the offer is insufficient, an action is brought so that the court sets the compensation due.

When it is worth involving a lawyer

Not every case calls for the same support. In a minor bump with no one hurt, much can be sorted out directly. But where there is personal injury, after-effects, an inability to work, disagreement over who was at fault, or where the insurer offers an amount that seems low to you, it makes sense to take legal advice before deciding.

Legal support helps to gather the right evidence, to wait for the appropriate moment to settle figures, and to assess whether the offer is, in fact, fair. Every case is different and no one can promise you an outcome. A timely review, however, avoids rushed decisions that later cannot be undone.

If you are searching for a specialist road traffic accident lawyer in Portugal, bear in mind that the Portuguese Bar Association (Ordem dos Advogados) does not grant that title in this field, as we explain in Is there a specialist accident lawyer in Portugal?. On cost, How much does a lawyer cost in Portugal? Fees sets out the criteria to be weighed in setting fees.

See also: Road traffic accidents ↗·Personal injury & civil liability ↗

Every situation is different. This note is general and for information only. It is no substitute for advice from a lawyer on your case, and it does not guarantee any outcome.