We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
17 December 2002
A civil court of first instance recently handed down a landmark judgment against the Portuguese state for failure to legislate. It awarded damages in the sum of approximately €600,000 to the parents of a child who was sucked into the pipes of a swimming pool at Aquaparque, a water park in Lisbon, in 1993.
In July 1993 a nine-year-old boy drowned when he was sucked into a circulation and drainage pipe in a swimming pool at a water park, because the protective grill which should have covered the pipe was out of place.
The victim's parents sued the Portuguese state seeking general damages and damages for pain and suffering sustained as a consequence of the child's death.
When the accident occurred there was no specific legislation governing water parks. Therefore Aquaparque had not violated any of the existing safety rules at the time.
Consequently, the parents' claim was based on the civil liability of the state for the wrongful failure to introduce legislation which, had it been introduced, would have regulated a situation of great danger in the operation of water parks and would probably have prevented the death of their son.
The parents invoked Article 22 of the Portuguese Constitution as the ground for their claim.
The Portuguese state defended the proceedings on the grounds that:
The state thus alleged that it was not civilly liable and the claim should be dismissed.
The fundamental question at issue in the proceedings was the state's civil liability for wrongful and unlawful failure to legislate, as it thereby breached subjective rights and interests protected by law.
This question was directly related to the interpretation of Article 22 of the Constitution, which provides as follows:
"The state and the other public bodies are civilly liable, jointly with the office holders in these bodies, their servants or agents, for acts or omissions in the exercise of their functions and by reason thereof, which result in the breach of rights, liberties and guarantees, or in loss or damage to another."
The question of whether the liability enshrined in Article 22 includes liability for legislative acts (or omissions) was debated. The court held that the provisions of Article 22 include all functions of the state, including its legislative functions, and consequently that these provisions can be invoked by individuals seeking damages from the state as legislator.
The court held that the state was aware that the existing legislation was inadequate, and that there was no specific legislation regarding the installation and operation of aquatic leisure facilities which promoted technical and user safety.
The court also held that a wrongful failure to legislate exists whenever the implementation of a constitutional provision or principle - such as the protection of life and physical safety - requires the state to legislate.
The state's wrongful act consisted of a breach of the right to life and personal integrity, and therefore a breach of the law, since the state has a mandatory constitutional duty to defend the constitutionally protected rights of its citizens, particularly the right to life and personal integrity.
The court held that the state was aware of research carried out in 1991 and 1992 by the National Consumer Protection Institute which concluded that there was a high accident rate in water parks which involved serious risk to the health and safety of individuals, and that one of the main reasons for this was the absence of specific legislation or rules applicable to safety in this type of facility.
The state was therefore aware that this type of facility had been authorized, licensed, and was operating without any supplementary regulations with regard to the creation of safe conditions, supervision and associated technical training.
The court held that the nature of the data collected in 1991 and 1992 proved that the state was aware of the high number of accidents and of their seriousness, and that it thus could not have been unaware of the hazardous nature of these facilities. The state was further aware of the need to subject these facilities to regulation in order to prevent the continued occurrence of accidents.
The court thus held that water parks should have been subject to specific regulation by the start of the 1993 season, when the accident in question occurred. The state bodies were therefore in breach of their specific duty to act to prevent accidents, and had acted in an ethically incorrect manner (ie, with fault).
Following the accident, reports were prepared to ascertain the causes of the accident. These reports concluded that the accident which led to the death of the child was related to the fact that there was no specific legislation governing the design and operation of water parks. No regulations existed which established the characteristics of safety grills or gratings, in terms of materials, configuration or fixture.
This legislative void gave rise to a corresponding series of events - that is, the lack of restrictions in the selection of the gratings, which ultimately led to the child's death, was a direct consequence of the lack of legislation which would have prevented this hazard.
The court of first instance therefore awarded damages in the sum of approximately €600,000 against the Portuguese state. This figure included:
The Portuguese state appealed to the Lisbon Court of Appeal, which upheld the decision with regard to the state's liability but halved the damages awarded to approximately €300,000.
The Portuguese state appealed to the Supreme Court of Justice, but reached an out-of-court settlement with the child's parents in July 2002 which involved the payment of undisclosed damages, thus ending an action which had dragged on for almost 10 years.
This judgment is groundbreaking since until now, the benchmark used by the Portuguese courts to award damages for death has been the value of a medium-class car in Portugal - that is, around €25,000.
For further information on this topic please contact Miguel Esperança Pina at Goncalves Pereira, Castelo Branco e Associados by telephone (+351 21 355 3800) or by fax (+351 21 353 2362) or by email (firstname.lastname@example.org).
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.
Miguel Esperança Pina