Introduction

With the increase in road traffic accidents and resulting injuries, including death, there is the question of how is it possible to protect a road traffic accident victim’s best interests and achieve a positive outcome under Turkish Law? This article will discuss the general provisions under the law and draw a distinction between personal injury compensation and compensation in the event of death resulting from a road traffic accident.

Liability

Article 49 of the Turkish Code of Obligations (“TCO”) governs tort liability and provides that, “Whoever causes damage unlawfully to another, whether intentionally or due to negligence is obliged to indemnify this other person”. The section, therefore, covers intentional and negligent conducts. There is also the tort of strict liability, which does not require proof of intention and so, is established independently from the wrongdoer’s conduct. Strict liability is dealt with under the Road Traffic Act (or “RTA”) which provides that for liability to be imposed, the motor vehicle that was involved in the accident must have been “in operation”. The motor vehicle must have also collided with a moving or immovable object. However, the motor vehicle operator can still be at fault even if the car is not in operation, especially if the operator is to blame or if a faulty car caused the accident.

The RTA further defines what is considered a motor vehicle, that is, vehicles moving with an engine power. It also clarifies who may be considered an operator under Article 85. This is someone who has the supervision of the motor vehicle. The owner is usually deemed to be the operator but the owner need not always be the operator. Below are common scenarios:

Employer/employee relationship

A motor vehicle driven by an employee of the operator will render the operator liable under strict liability rules. In cases where the motor vehicle is operated under a name of a commercial enterprise, the motor vehicle operator and the enterprise owner will be deemed jointly and severally liable.

Third-parties

 A person using a vehicle on a short- term basis, for instance, someone who borrows the vehicle for a couple of days will usually not be treated as operator. However, in cases of a long-term lease agreement, the user may be treated as the operator if he is taking care of all the running costs. A similar approach is taken in cases of vehicle liens except when the lien is put on the vehicle by registration instead of establishing possession. The pledgee is not going to be deemed as operator. If the motor vehicle is used with the operator’s consent or was stolen because of the negligence of the operator, the operator will remain liable.

Defenses?

A possible defense the defendant may raise is force majeure under Article 86 of the RTA. However, he must prove the accident was caused as a result of unforeseeable and unavoidable events including natural events, or circumstances that can be imputed to the gross fault of the victim or a third party. The defense is not available defects in the construction of the vehicle, mechanical failure, or human failure.

Contributory Negligence

The claimant’s portion can be reduced if it is proven that he was at fault during the incident. The aim is to adequately attribute to each party involved their part of the loss.

Awarding Damages

A claimant will almost always be awarded damages because of strict liability regulations. Article 91 of the RTA imposes an obligation on insurers to provide the minimum mandatory coverage since the amount of compensation might be high in value for the defendant. The victim is also given a right of action against the insurer according to Article 97 of the RTA. However, in the absence of insurance, there are regulations in place regarding a trust account to compensate the damages caused by a driver.

Compensation

Personal injury

The injured party can claim pecuniary damages for material injuries caused such as the amount required to restore the damaged vehicle to its former condition or loss of use with a daily rate depending on the type of the vehicle. Article 54 of the TCO also define the types of specific damages that the defendant has to pay:

• Medical expenses
• Lost wages
• Loss or impairment of working capacity
• Loss resulting from jeopardized economic future

The TCO makes provisions for persons who are closely related to the victim (spouse, parents, siblings and in special cases, fiancé) who have also suffered severe injury to be paid reparations, but this is subjective and is evaluated based on the facts presented.

Death

Relatives who were indirectly affected by the claimant’s death can claim material and moral damage, especially if they were his dependents, that is, those who the victim had been supporting. These persons include his mother, father, spouse, children, siblings, fiancé and the persons who are in the care of the victim. They are also entitled to claim:

• Funeral expenses
• Medical expenses and victim’s losses concerning the loss or impairment of working capacity if the injured party was alive for a while after the accident

It is at the judge’s discretion whether the compensation to be awarded is an annuity or a lump sum, but oftentimes, a lump sum is usually awarded to the injured party.

Statutory Limitations

Claims for damages based on the provisions of RTA have a statutory prescription period of 2 years starting from the time when the damage and the defendant became known by the victim. For other cases, it is 10 years starting from the date of the road traffic accident.

Conclusion

Road traffic accident claims are predominantly brought in negligence or intentional conduct. However, Turkish Law also considers circumstances involving strict liability. Further, the law takes varied approaches between awarding compensation in the event of personal injury or death.