Civil liability and compensation for harm.in Portugal

It is the obligation to make good the damage that one person causes to another. Compensation seeks to place the injured party in the situation they would have been in had the damage not occurred.

As a rule, when the requirements are met: an unlawful act, fault (intent or negligence), damage and a causal link between the act and the damage. There are also cases of liability without fault (strict liability).

Contractual liability arises from the breach of a contract. Non-contractual liability arises from the breach of a general duty not to harm others, outside any contract. The distinction matters for proving fault and for the time limits.

No. Negligence (a lack of care) is enough. Intent (dolo) is not required, although it may affect the seriousness and the amount.

As a rule, it is the injured party who has to prove fault. Damage alone is not enough. It falls to them to prove the act, the unlawfulness, the fault, the damage and the causal link between the conduct and the loss, the requirements set out in art.º 483.º, n.º 1 do Código Civil. As to fault, art.º 487.º, n.º 1 expressly places that burden of proof on the injured party. There are exceptions. In cases where fault is presumed, such as in contractual liability or in the supervision of persons lacking capacity, it is for the responsible party to show that they were not at fault. There is also strict liability, in which a person is liable even without fault, on the terms and within the limits set by law.

It is the connection between the act and the damage. It must be proved that the act was, in law, an adequate cause of the loss. Without a causal link, there is no obligation to compensate.

There may still be strict liability. A person who creates or benefits from certain sources of danger (vehicles, animals, electricity or gas installations) may be liable even without fault, on the terms and within the limits set by law (arts.º 499.º e seguintes do Código Civil). For dangerous activities, by contrast, fault is presumed. Whoever carries them out is liable, unless they show that they took all the measures required by the circumstances to prevent the damage (art.º 493.º, n.º 2).

As a rule, yes. The principal who entrusts a task to another is liable for the damage that the agent (e.g. the employee) causes in carrying out the functions entrusted to them, provided that the agent is also under an obligation to compensate (art.º 500.º do Código Civil), without prejudice to the right of recourse.

You can. A person under a duty of supervision (parents, schools) may be liable, unless they prove that they fulfilled that duty or that the damage would have occurred anyway (art.º 491.º do Código Civil).

Yes. The civil compensation claim may be brought within the criminal proceedings themselves or in a separate civil action, depending on the case.

It is the conduct (by act or omission) that infringes another person's right or a rule intended to protect the interests of others. It is the first requirement of non-contractual (tort) liability (art.º 483.º do Código Civil).

It is the blame the law attaches to someone who could and should have acted differently. It covers both intent (dolo) and negligence (the lack of the care that can be required). Fault is assessed by the standard of a reasonably prudent person, in light of the circumstances of the case (art.º 487.º, n.º 2 do Código Civil).

It is the most serious form of fault. The person intends the harmful result or accepts it as a consequence of their conduct. It differs from negligence, where there is a lack of care but no intention to cause the harm.

It is the lack of the care the situation called for, without any intention to cause harm. As a rule, negligence is enough to hold the person who commits it liable, provided the damage and the link between the conduct and the loss are also proved. Proving that lack of care is often what decides the case.

It is the person who suffers the damage and who, where the requirements are met, may be entitled to compensation. It may be an individual or a legal person. In the event of death, the law grants certain family members a right of their own.

It is the setting of the amount according to a judgement of fairness in the specific case, when the exact figure cannot be established precisely. It applies, for example, to non-pecuniary damages (art.º 496.º, n.º 4 do Código Civil) and to future damages (art.º 566.º, n.º 3).

It is the right of the person who paid the compensation to then claim reimbursement from the party actually responsible for what they paid. For example, an employer who has compensated a third party may claim reimbursement from an employee who acted with intent (dolo).

It is the reparation that restores the situation to what it would have been had the damage not occurred, such as repairing the asset or returning what was taken. Only where that is not possible or is not enough is it converted into compensation in money (art.º 566.º do Código Civil).

It is the obligation to compensate even without fault, imposed on those who create or benefit from a source of danger. It covers, among others, animals used in one's own interest (art.º 502.º do Código Civil), land vehicles (art.º 503.º) and electricity or gas installations (art.º 509.º). For dangerous activities, by contrast, the Código Civil does not dispense with fault. It presumes it, and it falls to the person concerned to rebut that presumption (art.º 493.º, n.º 2).

It is the victim's own contribution to the damage. Where it exists, it may reduce or even exclude the compensation, according to how serious that contribution is (art.º 570.º do Código Civil).

It is the declaration in which the injured party acknowledges having received the amount and treats the matter as settled. A full and final settlement usually extinguishes the right to claim anything further, so it should be read carefully before it is signed.

It is the loss of the right to claim compensation because time has passed without it being exercised. In non-contractual liability, the general period is three years from when the injured party becomes aware of the right (art.º 498.º do Código Civil).

Pecuniary damages (losses with an economic dimension: the losses actually incurred and the profits lost) and non-pecuniary or moral damages (pain, suffering, distress, aesthetic damage).

Yes, provided that, by their seriousness, they warrant the protection of the law (art.º 496.º do Código Civil). The amount is set by the court on an equitable basis.

Actual losses are the losses already suffered (expenses, destroyed property). Lost profits are the gains you failed to obtain because of the damage.

It is the impairment of a person's physical and psychological integrity, compensable even where there is no direct loss of income (STJ ruling on biological damage).

The rule is to restore the previous situation. Where that is not possible, an amount in money is set, measured by the difference between the actual situation and the one that would exist without the damage. For non-pecuniary and future damages, an equitable basis is used.

It can, where the injured party contributed to the damage through their own fault (art.º 570.º do Código Civil) or where liability is based on mere negligence (art.º 494.º).

Yes. Foreseeable future pecuniary damage is compensable. Where the amount cannot be established precisely, it falls to the court to set it, weighing the specific case (art.º 566.º, n.º 3 do Código Civil).

Yes, when they result from the damage and are documented. Always keep invoices and reports.

In many cases it is the insurer that takes on the compensation, within the limits and cover of the policy taken out. Where the insurance is compulsory (motor, workplace accidents, certain professions), the injured party has someone to claim from even if the responsible party has no means. Where it is optional, everything depends on what the insured party contracted for, so it is worth establishing the content of the policy early. Beyond those limits, or where there is no cover, it tends to be the responsible party's own assets that have to meet the claim.

Yes, as a rule. Default interest runs from the moment the responsible party falls into arrears with payment. In compensation for an unlawful act or for strict liability, that delay arises, as a rule, upon service of the proceedings (art.º 805.º, n.º 3 do Código Civil). Include the interest in your claim, because after years of proceedings the accumulated amount adds up.

There is no binding scale. Non-pecuniary damages are set on an equitable basis, according to the seriousness of the injury (art.º 496.º, n.º 4 do Código Civil), so the amounts vary considerably from case to case (STJ ruling on non-pecuniary damages). In practice, what supports a higher amount is medical evidence of the concrete impact on the injured party's life.

A poor outcome, on its own, is not enough. As a rule, there is medical negligence when the conduct breached good medical practice (leges artis) and there is a link between that conduct and the damage. Analysis of the clinical records and a medical expert report are the starting point to confirm it.

Yes, under Lei n.º 67/2007, for example for poorly maintained roads, unlawful acts or error in public hospitals. The regime and the time limits have particular features. In a private hospital, liability follows the ordinary civil regime and is heard in the civil courts. In a hospital under a public-private partnership, the answer is less straightforward and has produced diverging decisions, so it is assessed case by case.

The producer is liable regardless of fault (Decreto-Lei n.º 383/89). It falls to the injured party to prove the defect, the damage and the link between them. The law, however, provides for grounds excluding liability and limits on the recoverable damage, as well as its own limitation and lapse periods, the latter a strict statutory time-bar.

You may be. An unlawful attack on one's honour and good name infringes personality rights and may give rise to a right to compensation for non-pecuniary damages. Criticism is, in principle, allowed. Inventing facts or insulting someone tends not to be.

A breach of data protection may give rise to civil liability, in addition to intervention by the CNPD (the national data protection authority). There may be compensation for the damage suffered.

As a rule, the entity responsible for maintaining the road (the municipality or the concessionaire), if there is a lack of care. Photograph the hole at the time and note down the contact details of anyone who witnessed it, because evidence of the state of the location usually decides these cases.

The person who uses the animal in their own interest. That person is liable regardless of fault, provided the damage results from the special danger involved in the use of the animal (art.º 502.º do Código Civil).

Yes. There may be liability of the owner of the works and/or the contractor. An inspection and technical report before and after help to prove the damage.

Putting off consulting a lawyer and leaving everything to the last minute. Delay jeopardises evidence that can no longer be recovered later and can mean the claim becomes time-barred, which in non-contractual liability happens, as a rule, after three years.

First of all, the compensation remains due and can be enforced, for example by attachment of the responsible party's assets or of their estate. In addition, there are funds that step in when it is not possible to obtain payment from the responsible party: the state motor guarantee fund (Fundo de Garantia Automóvel) in road accidents, the Workplace Accidents Fund (Fundo de Acidentes de Trabalho) in workplace accidents where the employer is insolvent or without means (art.º 82.º da Lei n.º 98/2009), and the State in violent crimes. Where there is compulsory insurance, it is the insurer that pays. Keep evidence of the damage and observe the time limits, which tend to be short.

It is, as a rule, non-contractual civil liability, based on the driver's fault or on the risk inherent in the vehicle (art.º 503.º, n.º 1 do Código Civil). Since that liability has compulsory cover, you can claim directly from the responsible party's insurer.

In the case of non-pecuniary damages, the law organises those entitled into tiers. In the first are, together, the spouse not judicially separated as to person and property and the children or other descendants. If the victim lived in a legally recognised unmarried partnership (união de facto), that first tier belongs, together, to the person who lived with them and to the children or other descendants. If there are none of these, next come the parents or other ascendants. Finally, failing all of the above, the siblings or the nephews and nieces who represent them (art.º 496.º, n.º 2 e n.º 3 do Código Civil).

The loss of life itself is, in and of itself, a compensable form of damage, with its own value. That value is set on an equitable basis, taking into account the victim's age and circumstances. It is added to the remaining heads of compensation, where they exist: the victim's own suffering before dying, the grief of close family members and the pecuniary damages, such as the loss of the economic support the victim provided.

Yes. In addition to the amount for the loss of life itself, family members entitled to compensation may claim for their own grief and suffering caused by the loss, as a separate head of non-pecuniary damage.

Yes. The suffering and distress experienced by the victim between the act and death are damage of their own, which does not disappear with death and can be claimed, as a rule by the family members indicated by law.

Yes. Anyone who could claim maintenance from the victim (or whom the victim in fact supported) is entitled to compensation for the loss of that support (art.º 495.º, n.º 3 do Código Civil).

Yes. The expenses of the funeral and of the treatment provided to the victim are compensable, to whoever bore them, even if they are not a family member (art.º 495.º do Código Civil).

Account is taken of the victim's income, the portion of it devoted to the household, their age and life expectancy and the needs of those who depended on them. Where there is no exact figure, a judgement of fairness is made on the specific case.

There is no binding scale. There are reference points in the STJ ruling on compensation for death and indicative amounts for road accidents in Portaria n.º 377/2008, which guides insurers' offers, but the amount is set case by case by the court, on an equitable basis.

The victim's fault can reduce the family members' compensation in proportion to their contribution to the event, just as it does with any injured party (art.º 570.º do Código Civil).

As a rule, the three-year period of non-contractual liability applies, and time starts to run on the same terms as it did for the injured person. If the act is a crime with a longer limitation period, it is that period which applies (art.º 498.º do Código Civil).

Yes. Each holder has a right of their own to reparation of their damage. The claims may be brought together, which usually makes it easier to present the evidence and to keep the amounts consistent.

Yes. The lawyers at NAA support families in claiming this damage, with medical and expert assistance where necessary to substantiate the amounts sought.

As a rule, family members claim within the criminal proceedings themselves, by virtue of the rule that the civil claim is joined to the criminal case (art.º 71.º do Código de Processo Penal). Where it is a violent crime or domestic violence, if the offender cannot pay, the State may advance the compensation through the crime-victims protection commission.

It is the contract by which the insurer takes on the payment of compensation for damage that the insured party causes to third parties, within the limits of the policy. It may be compulsory or optional.

Compulsory, among others, are motor insurance, workplace accident insurance and the insurance of certain professions and activities. In these activities the risk of causing damage to third parties is greater, so the law does not leave the protection of the injured party to the will of those who carry them out.

It covers the risk of the insured party having to compensate third parties for damage caused within the scope of the policy (art.º 137.º do Regime Jurídico do Contrato de Seguro). As a rule, damage caused with intent (dolo) and damage to the insured's own property are excluded. The price is not fixed by any scale. It varies with the risk of the activity and the sum insured. Always read the policy and, in particular, the exclusions.

Yes, as a rule. With compulsory insurance, once the policy is confirmed to exist, the injured party should direct the claim straight to the insurer, without having to sue the responsible party first. In case of doubt, it is prudent to sue the insurer and the responsible party together.

It may be fair or it may fall short of what is due. Only analysis of the specific case will tell. You do not have to decide immediately. A single global offer may not correctly distinguish pecuniary, non-pecuniary and future damages. Since signing a full and final settlement generally closes the matter, always assess carefully before accepting. If you have already signed such a release, see the question "I have already signed the discharge or accepted the first offer. Can I still claim more?", because the damage that was not yet foreseeable when you signed tends to remain claimable.

It depends on what you signed. A simple receipt proves payment (art.º 787.º do Código Civil), but it does not imply a waiver of the rest. Giving up a right requires a clear declaration, and the courts interpret such declarations strictly. Accordingly, the damage that was not yet foreseeable when you signed tends not to be covered, and can continue to be claimed.

The excess is the part of the damage that falls to the insured party and not to the insurer. In relations with injured third parties, the excess, as a rule, cannot be raised against them in compulsory insurance. The insurer pays the injured party and then settles up with the insured.

Outside motor claims, a claim submitted to the insurer is, as a rule, answered within 20 working days. In motor claims there are specific time limits set by law. The insurer has 2 working days to contact the injured party and arrange the assessments, 30 working days to say whether it accepts liability (15, if there is a joint accident statement (declaração amigável) signed by both drivers) and 45 days, counted from the compensation claim, to put forward a reasonable offer for the bodily injury. If these time limits are not met, interest may run and there may be penalties against the insurer. Keep a written record of each contact, because a documented delay works in the injured party's favour.

You can ask for the reasons in writing and complain to the insurer itself and to its Customer Ombudsman (Provedor do Cliente). If the problem persists, you can complain to the ASF (the insurance supervisory authority). As a last resort, you can go to court. A lawyer helps to assess whether the refusal is legitimate.

You are not bound by that expert's conclusions. It is advisable to cooperate with the assessment, but you can appoint your own expert or doctor to assess the damage. An independent report is often decisive in supporting an appropriate amount.

Yes. When the insurer delays the payment due, default interest can be claimed under the general rules. In motor claims, the regime is stricter. If the insurer fails to put forward the reasonable offer within the time limit, or puts it forward in a manifestly insufficient way, interest runs at twice the legal rate (art.º 38.º, n.os 2 e 3 do Decreto-Lei n.º 291/2007). If the reasoned reply due within the legal time limits is not provided, there is also a penalty of 200 euros for each day of delay, half of which goes to the injured party (art.º 40.º, n.º 2 do mesmo diploma).

It is the body that compensates victims when the responsible party is unknown, has no valid insurance or the insurer is insolvent. It exists so that the victim is not left without reparation in those cases.

They pay out of their own assets. In the cases provided for by law, the guarantee fund of the relevant area may also step in, as happens with compulsory motor insurance. The lack of insurance does not deprive the injured party of the right to compensation; it only changes who pays.

Yes. The lawyers at NAA — Sociedade de Advogados handle claims and negotiate with insurers, with the final word on whether to accept resting with the injured person. Where there is no adequate offer, they prepare and conduct the court action, with expert support whenever it is warranted.

In non-contractual liability, as a rule, 3 years from becoming aware of the right (art.º 498.º do Código Civil). In contractual liability, the ordinary period is 20 years.

It runs, as a rule, from the day you became aware that you had the right, even if you did not yet know the responsible party or the full extent of the damage. There is, however, a maximum limit. Even if you only find out late, the right eventually lapses under the ordinary period, counted from the act itself (art.º 498.º, n.º 1 do Código Civil).

If the criminal law sets a longer limitation period for the crime, it is that period which applies to the right to compensation.

Evidence of the act, of fault (where required), of the damage and of the link between them: documents, photographs, witnesses, technical and medical expert reports. Gather everything from the outset.

No. Many cases are resolved out of court, with a reasoned letter of claim to the responsible party or the insurer. Only if no agreement is reached does the case go to court.

You can, but with consequences (costs and possible loss of rights). Never do so without advice.

There is no fixed period. With an agreement, payment tends to arrive within months. In court, it can take years. Once part of the damage is proved, the court can order payment of that part straight away (art.º 565.º do Código Civil). As for advances, where there is an urgent need, such as loss of income or treatment expenses, an interim payment of compensation may be requested from the court and paid while the proceedings are ongoing (art.º 388.º e seguintes do Código de Processo Civil).

As a rule, no. The courts are overloaded and a party cannot impose the pace on them, nor can the lawyer representing them. Civil procedure has no equivalent of the "application to expedite", which exists only in criminal procedure (art.º 108.º do Código de Processo Penal). An application merely requesting speed risks being regarded as manifestly unfounded and giving rise to an exceptional penalty charge, a monetary penalty for those who use unfounded procedural means (art.º 531.º do Código de Processo Civil). What does help is keeping the action well prepared (evidence organised) and responding quickly to whatever the court asks, so as not to add further delays.

Yes. The right to a decision within a reasonable time is in the Constitution (art.º 20.º, n.º 4) and in the European Convention on Human Rights. Where the delay is abnormal and attributable to the functioning of the justice system, compensation may be claimed from the State itself (Lei n.º 67/2007). It does not speed up the action, but it makes good the harm of waiting too long. The claim is subject to a three-year time limit.

As a rule, in actions with a value above 5,000 euros instructing a lawyer is mandatory. Even below that value, being assisted by a lawyer tends to make a difference in gathering the evidence and in calculating a fair amount.

The first legal consultation with a lawyer at NAA is 60 euros (VAT included). To bring the action there are court fees and professional fees. The court fees depend on the value of the case. The professional fees are agreed case by case, according to the complexity and the work anticipated, and are set out in writing before starting. Those on low incomes can apply for legal aid. If that is your situation, tell us and we will help you handle the application. The lawyer will give you an estimate before proceeding.

It is not free. At NAA the first legal consultation costs 60 euros (VAT included), a figure stated upfront. What you pay has a concrete return. In the consultation the lawyer carries out a technical analysis of the case, answers the questions you bring and checks whether the requirements for liability are met, what evidence is missing and what time limits are running, including the three years of the limitation period. You leave with a step-by-step plan and a note of what to keep from now on: documents, photographs and witnesses' contact details. If you are unsure about what to bring to the consultation, contact us beforehand and we will help you prepare.

Because independent advice has value and we treat those who come to us as clients from the very first minute, not as a contact to be converted. Advertising is permitted to lawyers, within limits, but the soliciting of clients is prohibited by the Bar Association's statute (Estatuto da Ordem). That boundary guides our choices. If you cannot pay, speak to us all the same. Legal aid exists precisely for those cases and we guide the application.

In that pure form, no one may. The pacto de quota litis, fees set exclusively by the outcome, is prohibited by the Estatuto da Ordem dos Advogados (art.º 106.º). What the law does allow is a prior fee agreement (even by reference to the value of the case) or a success fee added to the base fee, a combination common in this type of case. Whichever model is used, insist on the written agreement before starting and confirm how each part is calculated.

There is no "best compensation lawyer", nor is civil liability among the specialisms recognised by the Portuguese Bar Association. There are lawyers who have practical experience in cases like yours. Look for experience in civil liability and in negotiating with insurers, medical support to assess any bodily injury, and clarity about fees from the outset. Feeling you can trust the lawyer from the first contact is usually a good sign.