Personal Injury Liability in Turkey

Author: Mr. Gökhan Cindemir , Phd Candidate , Senior Partner Lawyer cindemir@cindemir.av.tr

Personal injury liability is well described under Tort Law Definition of Turkish Obligation Code. Under Turkish Law, there must be 4 conditions for tortius liability (in other words, personal injury liability).

1. Acts Against Law
2. Damage
3. Causal Relation
4. Negligence

 Act Against Law

 If a defective product damages a person, if someone falls into construction’s hole on the road due to lack of warning , etc. Accordingly in Turkish Law not only intentional acts against victim is covered by the law, additionally the acts which have omission character are included as an act against law. Therefore, personal injury must be arising from intentional act or acts stemming from negligence.

 It is also noteworthy to mention that as in all Roman based laws self-defence  is one of the exception for “act against law” principle. In case of harming third people as self-defence purpose will be not be considered as Act Against Law. Thus, self-defence is a legitimacy reason for personal injury cases.

 Damage

 Damage is a key factor in Turkey when determination of compensation amount will come to an issue.This may be material or immaterial damage. Generally in Turkish Court Practice, judges appoint an expert in order to determine compensation amount stemming from the damage. Forinstance, in case of a truck accident, traffic report which is written in the incident place will play a role to evaluate negligence level and experts who are specialized in personal compensation will determine the compensation amount.

 The amount of compensation shall be decided by the expert in two stages. The expert determines first the amount of the injury that the damaged person has actually suffered. The person claiming compensation has to prove the damage. The judge subsequently determines the amount of compensation after taking into account the circumstances and the degree of fault. Unlike Former Turkish Obligation Code in New Turkish Obligation Code, consideration of defendant’s (wrongdoer or tortfeasor) financial situation for determination compensation does not exist. Accordingly, the priorty and purpose of the law is to satisfy the injured person as much as possible. Such as loss of support related to family members, occurance of ability in daily life, permanent disability, contemporary disability, hospital expenses (in case that there is no social security registration), funeral expenses are all playing role in calculation of compensation amount.

 Casual Relation

The third condition of liability is the existence of proximate cause. There must be reasonable link between wrongdoer’s act and the injury to hold wrongdoer’s responsible. This casual relation must be evaluated under the principle of ordinary rules and circumstances of life.

 Negligence

Negligence levels are important in personal liability cases. Fault , defects and negligences are categorized as a level of “Severe” and “ Slight”. A person cannot be negligent unless he has ability to make fair judgments. The head of the family may be responsible for a minor’s act which caused a damage. A master is liable for damages caused by his employees or servants in the course of performing their duties, unless he proves that he exercised all reasonable in the circumstatances to precent such damage, or that the damage would have occured notwithstanding the exercise of such care. The modern trend in Turkey is to make the wrongdoer’s responsible for his acts.

There are some risky fields in life practice that also made lawmaker to pass a law to enable insurance companies for undertaking risks of possible damages. Forinstance, all vehicles are subjected obligatory insurance and personal damages stemming from traffic accidents must be compensated from these insurance companies (material compensation only) . Doctors and lawyers are entitled to obligatory insurance for the damages which may arise from their misconducts.

Reference: Turkish Code of Obligation and Introduction to Turkish Law edited by Tuğrul Ansay and Don Wallace.

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