Tort Compensation (TBK Article 49) - Conditions, Calculation, Duration

Tort is the act of harming someone else through a behavior prohibited by the legal order and resulting in an obligation to compensate for this damage. Turkish Code of Obligations No. 6098 Article 49 establishes the general rule of liability by saying "Anyone who harms someone else with a defective and unlawful act is obliged to compensate for this damage." Tort liability is the main source of non-contractual liability.

Four Elements of Tort

1) An Illegal Act

Verb; There must be a violation of a legal norm, personal right or a protective rule. The verb can be active (to do something) or passive (not to do something that one has to do). Illegality can appear in various forms:

• Violation of a direct legal rule (e.g. traffic rules, environmental legislation)
• Violation of absolute rights (property, personal rights)
• Breach of general duty of conduct (duty of care)

2) Defect

The perpetrator must have acted culpably. The fault may be in the form of intent or negligence. Intention; The perpetrator foresees and desires the outcome. Negligence; It is not showing the care and attention expected from an average person.

In exceptional cases, the law may stipulate strict liability (TCK Article 85 for the operator of a motor vehicle, Environmental Law Article 28 for environmental pollution, TBK Article 67 for animal keepers, TBK Article 69 for the liability of the building owner, etc.).

3) Damage

Damage; It is the decrease in a person's assets or personal rights. There are two types:

• Material damage: Decrease in assets (actual damage) and lost profit.
• Pecuniary damage: Pain, suffering, sadness, loss of reputation caused by violations of personal rights.

4) Causality Link

There must be a appropriate causal link between the illegal act and the damage. This bond; It must be strong enough that the damage would not have occurred in the ordinary course of life if it were not for the perpetrator's action. The main situations that cut the causal link:

• Force majeure (earthquake, war, unexpected natural event)
• Grave fault of the third person
• Gross fault of the injured person

Calculation of Financial Compensation

According to Article 51 of the Turkish Code of Obligations, the judge determines the scope and payment method of the compensation, taking into account the necessity of the situation and especially the gravity of the fault. Compensation aims to fully compensate for the damage (the principle of compensation is what the damage is).

Reasons for Discount (TBK article 52)

• Participatory (joint) fault: If the injured party also has fault, a discount is made on the fault rate.
• Judge's discretionary reduction:If the payment capacity of the compensation obligor is exceeded or reduced to great difficulty, the judge may reduce the compensation (especially in cases of non-serious fault).

Pecuniary Compensation (TBK article 56)

Judge; In case of damage to a person's physical integrity, it may decide to pay an appropriate amount of money to the injured person as moral compensation, taking into account the characteristics of the incident. In case of serious bodily harm or death, it may be decided to pay an appropriate amount of money as non-pecuniary compensation to the relatives of the injured or deceased.

The judge has a wide discretion in non-pecuniary damages; The court uses the following criteria: severity of the incident, degree of fault, age of the victim, social and economic situation, intensity of the plaintiff's moral pain, economic situation of the parties.

Prescription (TBK article 72)

Two separate periods are applied for tort compensation:

• 2 years — from the date the injured party learned about the damage and the perpetrator
• 10 years — in any case, from the date the act was committed

If the act also constitutes a crime, the longer statute of limitations prescribed in the criminal law applies (extended statute of limitations). This can extend the case up to 8-15 years, especially in crimes such as traffic accidents, work accidents, intentional injuries, and fraud.

Joint Responsibility (TBK article 61)

If more than one person causes the same damage together, each of them is jointly and jointly responsible for the damage. The injured party may claim all damages from any perpetrator; The perpetrator who pays has the right to recourse to others for the portion exceeding his share (TBK art. 62).

Tort and Breach of Contract Competition

If the same event constitutes both a breach of contract and a tort (e.g. doctor's contract + medical error), the injured party may be liable for both. This situation provides a strategic choice regarding the proof and statute of limitations of the case.

Jurisdictional and Competent Court

• Officer: Civil Court of First Instance (HMK art.2). The amount is the determined receivable/compensation case.
• Authority: The defendant's place of residence (TCC Art. 6) or the court of where the tort is committed or where the damage occurs (HMK Art.16).

Burden of Proof

In a tort lawsuit, the plaintiff has the burden of proving the following four elements: