Suppose a motorist knocks you off the sidewalk as you were walking or off your bicycle as you were riding, is this a wrong you can sue him for? What if your neighbours keep making an intolerable noise, can you get a court to stop them? These types of conducts are considered wrongful acts and are referred to as torts. If the courts would accept your claim in the examples given above, we say that the defendants are liable to you and the law, therefore, requires redress in the form of compensation for your injuries. So, the law of tort is about when liability exists.
1. Conditions for Tort
There are four (4) main conditions for tort:
a. Acts Against Law. This is understood to mean not only the provisions within statutes, by-laws and regulations but also acts of omission (or a failure to act). Take, for example, a landowner who leaves a hole in his yard will be liable if somebody enters his premises and falls into the hole because there was no adequate warning. The omission, however, can be a basis for liability only if a person has a duty to act.
b. Damages. Most victims of tort want money, and so a court may order the wrongdoer to pay damages. Damages are compensatory, meaning, it can be computed in monetary terms. It may also be classified as material or immaterial (moral). Material damages may arise if a house burns down or when your car is damaged. However, if a man becomes ill and incurs hospital expenses because of the death of his only son, the person who caused the son’s death may be obliged to pay moral damages. But, normally, the law requires compensation of material damage.
c. Causation. Damages are due to the victim only if the harm was because of the defendant’s misconduct. Causation must, therefore, be established. To hold a person responsible as a wrongdoer, there must be a causal link between the act or omission and the injury sustained. The court may apply various tests to determine the issue of causation.
d. Negligence. This is a ground for liability and it occurs when one fails to take reasonable care to avoid causing damage to another person. Thus, a person cannot be negligent unless he can make fair judgments. Consequently, minors who lack capacity have no tortious liability. However, to limit liability to cases where there is negligence may cause some unjust results. For instance, the owner of a building can be liable for damage caused by defective design or construction or by deficient upkeep.
Where the above conditions have been met, the injured party may claim compensation. The amount of compensation will be decided by the judge by assessing the amount of the injury that the victim suffered (stage one) and determining the amount of compensation after taking into account circumstances and the degree of fault (stage 2). Concerning stage two, damages for an injury may be reduced to the extent that the claimant’s fault contributed to it, that is, contributory negligence. It affects the claimant’s quantum of recovery rather than the defendant’s liability.
3. Third-Party Injuries
Where someone has died from a tortious act, the dependents of the deceased who have suffered may demand compensation. These dependents (relatives or otherwise) have received or would have received support payments from the victim.
4. Statute of Limitation
Turkish laws can restrict the time within which legal proceedings may be brought to claim compensation from the tortious act. The term is one year running from the date on which the victim received the knowledge of the damage and of the person who caused the damage. This may not be longer than ten (10) years from the date when the act causing the damage occurred.
Private International Law Regarding the Tort
Under Turkish laws, Article 34 of the Turkish Code of International Private Law and Procedural Law (“PIL Code”) covers the liability for torts and the application of the lex loci delicti commissi (the law of the place where the tortious act is committed) or put simply, the place of the injury or wrong. It applies to the conditions of arising of torts, the capacity to commit torts, willful intent and negligence in torts, the provisions of torts and compensation and its scope.
If the elements of liability (act and damage) took place within the boundary of one state, then the places of the act and the damage would be identical and obligations arising from the tort will be governed by the law of that state. However, where the act and damage are committed in separate places, the law of the state where the damage occurred shall govern.
Interestingly, where it is clear from all the circumstances of the case that the tort is manifestly more closely connected with another country, the law of that other country shall apply. The application of lex loci delicti laws can be restricted in favour of the law of place with the manifestly closer connection. When the incidents and the parties have a more common relationship with one state, then the law of the manifestly closer connection can be applied.
Accordingly, a tort is an act or omission, which gives rise to injury or harm to another and amounts to a wrong for which courts impose liability. In other words, a wrong has been committed and the remedy is money damages to the person wronged. However, to prove whether a tort exists, several conditions must first be met.