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10 August 2004
Portugal has an extensive network of highways, some of which are managed by public limited companies under concession contracts executed with the Portuguese state. These contracts render the concessionaire generally liable for all events occurring on the respective highway.
A recent case before the Portuguese courts involved an accident which occurred when a car hit a dog which was crossing a highway.
The plaintiff - the company which owned the vehicle - demanded the payment of an indemnity for damages resulting from the accident. It alleged that the public limited company responsible for managing the highway did not take the necessary steps to ensure users' safety, in violation of its duties under the concession contract.
The defendant argued that the facts on which the claim were grounded did not occur, as the dog was never found despite several patrols of the highway following the accident. It further maintained that even if the accident had occurred as reported, it should not be held liable, as all perimeter fences were kept in good condition and diligent surveillance of the highway was carried out; even with such precautionary measures in place, it was impossible to guarantee the inaccessibility of the highway to animals.
Analysis of the evidence
In assessing the witness statements, the court concluded that the testimony of the driver was far more plausible than that of the defendant's witness, the highway's director of security, since the driver had direct and personal knowledge of the facts leading to the accident and could provide a clear description of them. In contrast, the director of security only had second-hand knowledge of the facts.
The court therefore decided that the accident had occurred as described by the plaintiff's witness, the driver of the car.
After considered deliberation on the concession contract and its importance for highway users, the court concluded that a contractual relationship ruled by private law exists between a concessionaire and a highway user when the latter drives on a highway after paying a toll. Therefore, the concessionaire will be liable for any breach of this contract, and there is a presumption of guilt in the presence of any default, according to Article 799 of the Portuguese Civil Code, which shifts the burden of proof from the highway user to the concessionaire.
In this context, the court concluded that the concessionaire is obliged to ensure that all highway users can travel in comfort and safety; the presence of an animal on a highway endangers this purpose. The concessionaire's failure to meet this obligation in this case constituted a breach of contract. As the animal's presence on the highway (and thus the accident) would have never occurred had the concessionaire fulfilled its contractual obligations, it had to be considered liable for the accident.
The court therefore confirmed that the concessionaire was liable for the accident and ordered it to pay the requested damages, as the breach of contract was considered sufficient to trigger such damages.
Condition of perimeter fences
In the court's view, the concessionaire's claim that the perimeter fences along the highway were maintained in good condition was not proved. However, given that the highway in question is 350 kilometres long, it is difficult to imagine how this fact could have been proved in addition to the director of security's statement on the issue confirming that several patrols on the day in question revealed no anomalies in the fences.
Moreover, it cannot be categorically stated that the appearance of a dog on the highway was due to such an anomaly - for instance, animals are sometimes abandoned on highways. In addition, the accident occurred near an exit node which has no fences, so the animal could well have entered the highway through this node.
Notwithstanding the principle of free evaluation of evidence, the scant regard paid by the judge to the evidence presented by the concessionaire may constitute a violation of the principle of equality of the parties, which is enshrined in the Portuguese Constitution. Given that there was a sole eyewitness to the alleged accident - who was the driver of the vehicle and who had an obvious interest in the plea - it was superfluous to state that the concessionaire's witness did not have direct knowledge of the facts and, consequently, to dismiss his testimony on the grounds that only the driver had such knowledge. It may thus be concluded that the principle of equality of the parties was not respected.
Given the existence of a wide-ranging network of highways across Europe, it is necessary to determine the potential liability of the companies responsible for their management in the context of an accident. The court's decision in this case appears to be fairly partial and a degree of prejudice during the trial was evidenced.
Based on the court's reasoning, it would easily be possible for someone to claim damages alleging that an animal has hit his vehicle, even if the accident took place elsewhere. Likewise, if the driver's testimony alone is deemed sufficient to prove all facts relating to such an accident - that is, that the accident took place on the highway and an animal did hit the vehicle - the defendant has lost the battle from the outset.
Moreover, if the contractual liability theory which reverses the burden of proof applies - thus shifting the burden of proof to the concessionaire - it appears that the concessionaire will always lose, given that the amounts usually at stake in such cases mean that the decisions cannot be appealed.
It is hoped that this decision will not become a precedent, if a satisfactory balance between the rights of highway users and concessionaires is to be maintained.
For further information on this topic please contact Miguel Esperança Pina at Gonçalves Pereira, Castelo Branco e Associados by telephone (+351 21 355 3800) or by fax (+351 21 353 2362) or by email (email@example.com).
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Miguel Esperança Pina