Compensation Law

For liability in compensation to arise, there must be an unlawful act, a proper causal link between that act and the damage, and, as a rule, fault. In some cases fault is not required; the liability of the operator of a motor vehicle and the liability of the owner of a structure are examples of strict liability.

Damage arises either as pecuniary damage, a decrease in assets, or as non-pecuniary damage, an infringement of personal values. Even where both types of damage arise from the same event, they are claimed and calculated separately.

Liability may also arise from a contract. If the same event constitutes both a breach of contract and a tort, the injured party may rely on whichever type of liability is more favorable to them. This choice also affects the applicable limitation period.

Article 54 of the Turkish Code of Obligations No. 6098 lists the items that may be claimed in the case of bodily injury as treatment expenses, loss of earnings, losses arising from the reduction or loss of working capacity, and losses arising from the impairment of economic prospects.

In the case of death, under Article 53 of the Turkish Code of Obligations, funeral expenses, and, where death did not occur immediately, treatment expenses and losses arising from the reduction or loss of working capacity, as well as the losses suffered by persons deprived of the deceased's support as a result, may be claimed.

The list of items is not exhaustive. Necessary expenses such as attendant care costs, the cost of prosthetics and orthotics, and transport expenses incurred during treatment are also treated as pecuniary damage, provided they are documented.

Under Article 56 of the Turkish Code of Obligations, the judge may, having regard to the particular circumstances of the event, order payment of a reasonable sum to the injured party as non-pecuniary damages in the case of an infringement of bodily integrity. Non-pecuniary damages may also be awarded to relatives in the case of severe bodily injury or death.

In determining the amount, the economic and social circumstances of the parties, the manner in which the event occurred, the severity of the fault, and the degree of pain and suffering experienced by the injured party are considered together. The award must not be determined in a manner that would amount to a means of enrichment.

Non-pecuniary damages are of an indivisible nature; as a rule they are claimed once and as a single item. For this reason the claim must be correctly framed from the outset.

Damages for loss of support are paid to persons who have lost the deceased's regular, gratuitous support. Being an heir is not required to be entitled to this claim; a fiancé(e) or a dependent relative who in fact received support may also be entitled.

It must be shown that the support relationship actually existed, or that it would have existed in the future had the event not occurred. Support that would have been provided in the future in respect of a young child is also taken into account.

In the calculation, the deceased's probable life expectancy, earnings and support shares, and the possibility of the beneficiaries marrying or reaching the age of majority are taken into account. The calculation is made by way of a technical expert report.

A claim for pecuniary damages, being a proprietary right, may be transferred and passes to the heirs. For this reason, if the injured party dies, an action already filed may be continued by the heirs.

A claim for non-pecuniary damages is a claim closely tied to the person. If it was already raised by the injured party, the heirs may continue the action; if it was not raised, the matter is contentious.

In the case of a transfer of the claim, the transferee's right is limited to that of the transferor. The transfer agreement must be in writing and its scope clearly stated.

Under Article 97 of the Highway Traffic Act No. 2918, within the limits provided under the compulsory motor third-party liability insurance, the injured party must submit a written application to the relevant insurance company before resorting to litigation.

The same article provides that if the insurance company fails to answer the application in writing within fifteen days at the latest from the date of application, or if the answer given does not satisfy the claim, the injured party may file suit or apply for arbitration under Law No. 5684.

This application is treated by regional courts of appeal as a special procedural prerequisite to filing suit. Where an action is filed without this application having been made, the granting of time to cure the deficiency arises, which in turn prolongs the process.

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Diminution in value is the loss arising from the vehicle's failure, after repair, to reach the market value it had before the accident. Even where the repair cost has been paid, diminution in value may be claimed as a separate item.

The claim may be directed against the at-fault driver, the operator, and the compulsory motor third-party liability insurer. In a claim against the insurer, the calculation methods set out in the general terms and conditions, along with criteria such as the vehicle's age and mileage, come into play.

To prove the diminution in value, the accident report, repair invoices, damage photographs, and records showing the vehicle's condition before the accident are gathered. The calculation is made through an expert examination.

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Compulsory motor third-party liability insurance makes payment limited to the coverage limits stated in the policy. For the portion of the damage exceeding the limit, recourse is had against the operator, the driver and any other persons liable.

If optional third-party liability insurance also exists, part of the damage above the limit may be covered from that policy. For this reason, all policies covering the vehicles involved in the accident should be investigated.

If the policy contains exclusions from coverage, the insurer may decline to pay. In allegations such as driving under the influence of alcohol or driving without a license, the insurer's right of recourse also comes into play.

In an occupational accident, the employer's liability arises from a breach of occupational health and safety obligations. The employer is relieved of liability to the extent it proves that it took the necessary precautions; for this reason the burden of proof largely rests with the employer.

Payments made by the Social Security Institution are set off against the compensation that may be claimed. For this reason, before filing an action, the Institution's file and, if an income has been awarded, its capitalized value must be examined.

At workplaces with a principal employer, subcontractor relationship, the joint liability of the principal employer and the subcontractor arises. The nature of the work being performed at the time of the accident determines the allocation of liability.

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Permanent disability is determined by a health board report issued in accordance with the legislation currently in force on disability criteria. Since the compensation calculation is based on this degree, the proper procedure followed in issuing the report is at the center of the dispute.

If treatment has not been completed as of the date of the report, the degree may be reassessed following recovery. A report obtained too early may result in a finding below the true extent of the damage.

The report may be challenged, and a report from a different healthcare institution may be requested. Providing grounds for the objection is important for the acceptance of the request for a new examination.

The relationship between private healthcare institutions and the patient is, as a rule, based on contract. In this relationship a breach of the duty of care is alleged, and it must be shown that conduct did not conform to the medical standard.

For damage occurring at public hospitals, the administration's fault in the performance of its service comes into play, and the claim is brought before the administrative court. Correctly determining the applicable jurisdiction from the outset prevents loss of time.

Failure to obtain informed consent in the proper manner is discussed as a ground of liability in its own right. For this reason, consent forms, discharge summaries, imaging records and treatment notes form the core of the file.

If the injured party's conduct contributed to the occurrence of the event or to the increase of the damage, the judge may reduce the compensation. Conduct such as not wearing a seatbelt or not using a helmet is assessed within this scope.

The degree of fault is determined through a technical examination of the manner in which the event occurred. The finding of fault made in the criminal file is not binding on the civil court; however, it is treated as strong evidence.

Where more than one person is at fault, joint and several liability arises toward the injured party. The injured party may claim the entire compensation from any one of those liable; the matter of recourse among them is resolved separately.

In compensation arising from tort, interest runs, as a rule, from the date the damage arose. This rule means that the injured party is not required to additionally send a formal notice.

In actions filed against an insurance company, the starting point for interest is discussed in connection with the application and response periods. For this reason, the date and content of the application must be documented.

Interest that has not been claimed cannot be awarded. Clearly stating the type of interest and the starting date in the statement of claim removes the later need for an amendment of the claim.

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When filing an action, an expense advance is deposited consisting of the filing fee, the proportional fee paid in advance, service of process costs and expert fees. Since the proportional fee is tied to the amount claimed, the size of the claim directly affects the cost.

In an action for an unquantified claim, the fee is paid on the amount stated at the outset; when the claim is later increased, the outstanding fee is completed. This reduces the burden at the stage of filing the action.

The losing party is liable for the litigation costs and the other party's attorney's fee. Where the claim is partially accepted, the costs are apportioned according to the ratio of acceptance and rejection.

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The keeper of an animal is liable for damage caused by that animal. The keeper may be relieved of liability if they prove that they exercised the care required by the circumstances.

The liability of the owner of a structure, by contrast, does not depend on fault. The owner is held liable for damage arising from a defect in the construction of the building or structure or from a deficiency in its maintenance.

In such files, it is necessary to determine, through land registry and management records, who holds ownership and the maintenance obligation. In buildings subject to condominium ownership, the distinction as to common areas changes the allocation of liability.

Where the administration takes physical possession of an immovable without carrying out an expropriation process, the owner may claim registration against payment and compensation. This claim is based on the protection of the right of ownership.

Where the immovable has been allocated by a zoning plan to a public service but expropriation has not been carried out for a long period, a dispute as to legal seizure arises. As to these two situations, the applicable jurisdiction and the form of the claim differ.

In these files, the land registry record, the zoning status, plan amendments and documents showing actual use are gathered. Valuation is carried out according to the nature of the immovable in order to determine the compensation.

Under Article 72 of the Turkish Code of Obligations, a compensation claim becomes time-barred upon the expiry of two years from the date the injured party learned of the damage and of the person liable for compensation, and in any event upon the expiry of ten years from the date the act was committed.

The same article provides that where the act also constitutes an offense and the criminal statutes provide for a longer limitation period, that longer period applies. This rule leads to an extension of the period in cases such as traffic incidents resulting in death.

The two year period is tied to the moment of learning. Where the extent of the damage becomes clear only over time, as with health damage that emerges later, the determination of the moment of learning becomes contentious and requires an assessment specific to the file.

Limitation period calculator →

Since the amount of compensation depends on an expert examination, it cannot be expected, in most files, that the exact amount will be determined when the action is filed. In such a case, an action may be filed on the basis that the claim is unquantified.

In this way, when the claim is increased after the report, the protection tied to the filing date, in terms of limitation and interest, is retained. Otherwise, a risk regarding the period may arise for the increased portion.

If it is found that the claim was in fact determinable, the action may be dismissed on procedural grounds. For this reason, the choice of the type of action must be made according to the concrete facts of the file.

Compensation claims arising from tort are, as a rule, heard in the civil court of general jurisdiction. Claims arising from traffic accidents and directed against an insurer are treated as commercial in nature and are filed in the commercial court of first instance.

Claims arising from an occupational accident are brought before the labour court, and damage arising from the performance of a public service is brought before the administrative court. An action filed in the wrong court is prolonged by a decision of lack of jurisdiction.

As to territorial jurisdiction, in addition to the court of the defendant's place of residence, the courts of the place where the tort was committed and of the place where the damage occurred also have jurisdiction. For events occurring in İzmir, the İzmir courts therefore have jurisdiction.

Actions filed in İzmir's central districts are heard in the civil courts of general jurisdiction and the commercial courts of first instance within the İzmir Courthouse. If the accident or event occurred in a district, the relevant district courthouse may also have jurisdiction.

Districts such as Bergama, Ödemiş, Torbalı, Menemen, Aliağa, Urla, Kemalpaşa, Tire, Selçuk and Çeşme have their own courthouses. Correctly selecting the courthouse with jurisdiction affects the time until the file's first hearing.

The location of the evidence is also taken into account when making this choice. In files requiring a site inspection, a court close to the scene of the event may speed up the process.

A criminal case and a civil case are independent of one another. The civil court is not required to await the outcome of the criminal case in order to decide the compensation claim; however, it may treat it as a preliminary matter to be awaited.

Findings made by the criminal court on the facts constitute strong evidence before the civil court. Conversely, the absence of criminal liability does not mean the absence of civil liability.

The party harmed by the offense may follow the file by joining the criminal proceedings as an intervening party. This is useful for monitoring the gathering of evidence and obtaining documents for the civil action.

In commercial disputes concerning a claim for a sum of money, mediation is a procedural prerequisite to filing suit. Traffic-related compensation claims directed against an insurer, being commercial in nature, may fall within this scope.

Claims for pecuniary and non-pecuniary damages arising from an occupational accident are kept outside the scope of mandatory mediation provided for in employment disputes. An action may be filed directly for these claims.

Voluntary mediation may also be chosen in cases where it is not mandatory. In files where liability is undisputed and the dispute concerns only the amount, this route may save time.

It is possible to hold settlement discussions with the liable party or the insurer. However, unless its scope is narrowly drafted, a release or settlement document to be signed may be interpreted as also covering damage that may arise in the future.

For this reason, it is important, before settlement, that the degree of disability has become final and that the items of damage have been calculated. A release signed too early may bar subsequent claims.

Receiving a partial payment does not automatically extinguish the right to sue. Which item the payment is set off against should be documented in writing.

Records showing how the event occurred, any criminal investigation file, witness information and camera footage form the basis for establishing liability. Since the retention period for recordings is short, they should be requested at an early stage.

For the amount of the damage, hospital records, discharge summaries, health board reports, invoices and payment documents, and records showing income are gathered. In cases of permanent disability, the report showing the degree of disability is decisive.

For establishing the insurance relationship, the policy and the claim file are requested. Payments made by the insurer, along with payments made by the Institution, must be included in the file for purposes of the set-off calculation.

Judgments concerning a monetary claim may, as a rule, be enforced before becoming final. This means that the route to collection remains open even while the decision is at the appellate stage.

Conversely, if the decision is overturned, the return of the amount collected arises. Because of this risk, the opposing party may request a stay by providing security for the suspension of enforcement.

Judgments concerning title to immovable property and certain decisions relating to family law cannot be enforced before becoming final. For this reason, which items a decision contains must be examined before enforcement proceedings begin.