CIVIL LIABILITY OF THE OPERATOR AND OF THE OWNER OF THE ENTERPRISE TO WHICH THE VEHICLE OPERATOR IS ATTACHED FOR DAMAGE ARISING FROM THE OPERATION OF MOTOR VEHICLES

PART ONE

§ 1 BASIC CONCEPTS

I. MOTOR VEHICLE

The Highway Traffic Law (KTK) does not directly define the concept of a motor vehicle. By contrast, the definition of a motor vehicle in the Swiss Road Traffic Act is clear:“A motor vehicle within the meaning of this law is any vehicle that can travel on land by its own propulsive power without being bound to rails (Yılmaz, H. 2014 ).

II. CONVEYANCE (TAŞIT)

In KTK m.3, a Conveyance is defined as follows: “Means used for carrying persons, animals and goods on the highway. Those among them that are propelled by machine power are called motor conveyances, and those propelled by human or animal power are called non-motorised conveyances".

III. TRAILERS AND TOWED VEHICLES

In KTK m.3, a Trailer is defined as follows: “A non-motorised conveyance manufactured for carrying persons and goods which is towed by a motor vehicle”.

IV. HIGHWAY

In KTK m.3, a Highway is defined as follows: “Strips of land, bridges and areas open to public use for traffic”.

V. VEHICLE (ARAÇ)

In KTK m.3, a Vehicle is defined as follows: “The general name for motorised, non-motorised and special-purpose conveyances, construction machinery and rubber-tyred tractors that can be used on the highway”.

VI. OPERATOR (İŞLETEN)

In KTK m.3, the Operator (keeper) of the vehicle (işleten) is described as follows: “The person who is the owner of the vehicle, or who appears in the register as the buyer in a sale with retention of title, or who, in cases such as the long-term hire, loan for use or pledge of the vehicle, is the hirer, borrower or pledgee. However, if it is proved by the interested party that another person operates the vehicle on his own account and at his own risk and has actual control over the vehicle, that person shall be deemed the operator”.

A) Actual Operator

Under the KTK, the persons who are the owner of the vehicle, or who appear in the register as the buyer in a sale with retention of title, or who, in cases such as the long-term hire, loan for use or pledge of the vehicle, are the hirer, borrower or pledgee, are enumerated in concrete terms and accepted as the actual operator.

B) Presumed Operator

The Law deems certain persons to be presumed operators even though they are not actual operators, and holds them liable for the damage that occurs just like the actual operator. What is at issue here is the liability of certain persons “in place of the operator” or “as an operator”. These are: the owners of enterprises engaged in professional activities relating to motor vehicles, race organisers, the State and other public legal entities, and persons who steal or seize a motor vehicle by force (Eren, F. 2016 ).

§ 2 HISTORICAL DEVELOPMENT OF LIABILITY ARISING FROM THE OPERATION OF MOTOR VEHICLES

The spread of motor vehicles gave rise, in societies, to the need to adopt legal regulations in this field as well. In the Turkish legal system, regulations were made in the Turkish Code of Obligations and the Turkish Commercial Code on the basis of general rules and grounds such as contractual liability.

In the Turkish legal system, the first special legal regulations concerning highways are the Municipality Law No. 1580 dated 03.04.1930, the Highway Traffic Law No. 6085 dated 11.05.1953 and the Highway Traffic Law No. 2918 dated 13.10.1983, which entered into force by repealing that law.

§ 3 LEGAL NATURE OF LIABILITY ARISING FROM THE OPERATION OF MOTOR VEHICLES

I. VEHICLES IN OPERATION

In its 85th article, entitled “Civil liability of the operator and of the owner of the enterprise”, the Highway Traffic Law No. 2918 adopts the principle of strict liability (causal liability) as the main rule and the principle of fault-based liability as the exception (Eren, F. 2016 ).

In this context, the Highway Traffic Law No. 2918 has accepted the civil liability of the operator and of the owner of the enterprise as hazard-based liability.

Article 85 of the Highway Traffic Law No. 2918, by providing that “If the operation of a motor vehicle causes the death or injury of a person or damage to a thing, the operator of the motor vehicle and, where the motor vehicle is operated under the trade name or business name of an enterprise or with a ticket issued by that enterprise, the owner of the enterprise to which it is attached, shall be jointly and severally liable for the resulting damage.”, states that the operator or the owner of the enterprise is in any event jointly and severally liable for the consequences.

Whether the operator or the owner of the enterprise is at fault or not will have no effect on liability. Since the principle of liability provided for by the Highway Traffic Law is a special type of liability compared with the principle of fault-based liability in the Code of Obligations, where hazard-based liability and fault-based liability coincide in the person of the same operator or owner of the enterprise, the operator or owner of the enterprise is subject to hazard-based liability¹. Nevertheless, if in the compensation of damage arising from the operation of the vehicle the operator or the owner of the enterprise is also at fault, this fault is deemed additional fault and deprives the operator or owner of the enterprise of the possibility of being released from liability under KTK m. 86².

According to KTK m. 85//1, the liability of the operator or of the owner of the enterprise is not a liability of care based on the breach of an objective duty of care. Accordingly, even if the operator or the owner of the enterprise proves that he has fulfilled every duty of care with regard to the maintenance and supervision of the driver or the vehicle, he is liable for the damage where it arises from the operation of the vehicle³. Since the basis of the vehicle operator's liability is hazard-based liability, the legislator has envisaged such a hazard for the vehicle being in a state of operation⁴. In this case, the legislator regards the fact that the vehicle was in a state of operation at the time of the accident as sufficient to render the operator or the owner of the enterprise liable.

II. VEHICLES NOT IN OPERATION

Article 85 of the Highway Traffic Law No. 2918 provides as follows: “In order for the operator to be held liable for a traffic accident caused by a motor vehicle that is not in operation, the injured party must prove the existence of fault on the part of the operator or of the persons for whose acts the operator is held liable in the occurrence of the accident, or that a defect in the vehicle caused the accident.” For damage that does not arise from the operation of the vehicle, the Law subjects the operator, depending on the manner in which the accident or the damage occurred, either to liability of care (ordinary causal liability) or to fault-based liability⁵. If the injured person proves the fault of the vehicle operator or of the persons for whose acts the operator is responsible in the occurrence of the accident, or that a defect in the vehicle caused the accident, the operator may be held liable for the resulting damage⁶. In this case, the burden of proving that the operator was at fault or failed to fulfil the duty of care lies with the injured party.

III. SOME OTHER SITUATIONS PROVIDED FOR IN THE KTK

1. Types of Liability

The KTK is a law that displays all types of liability, from hazard-based liability, which reflects the contemporary trend, to the simplest fault-based liability. The liability of the motor vehicle operator is regulated as hazard-based liability. However, alongside hazard-based liability, ordinary strict liability and fault-based liability are also provided for. Moreover, the damage suffered by operators and the damage suffered by third parties are attributed to different liable persons. If damage falling outside the scope of the KTK is added to this, a very rich picture of types of liability emerges, extending as far as contractual liability⁷. In this sense, the KTK has made it possible to apply different types of liability according to the types of liability arising from the accident that has occurred. Depending on the situation, it has allowed the application of fault-based liability or of Ordinary Strict Liability or Hazard-Based Liability, which are types of strict liability. Since the KTK is a more special law than the TBK and the TTK, in the event of concurrence of liabilities, priority should be given, in accordance with the procedural rules, to the types of liability provided for by the KTK.

a) Fault-Based Liability

Fault is an indispensable condition of liability. It may take the form of intent or negligence. If the perpetrator is not at fault, he is not liable for the damage that has occurred either. For this reason, the damage resulting from unforeseen (unexpected) events is borne by the injured party (victim), since no fault can be attributed to the perpetrator in such events. For tortious liability based on fault, expressions such as “subjective liability”, “fault-based liability” and “tortious liability in the narrow sense” are also used. Article 49 et seq. of the Code of Obligations essentially regulate this type of liability⁸.

In the provision of Article 49 of the Code of Obligations, which reads “A person who causes damage to another by a culpable and unlawful act is obliged to compensate that damage. Even in the absence of a legal rule prohibiting the damaging act, a person who intentionally causes damage to another by an act contrary to morality is also obliged to compensate that damage.”, in order to speak of fault-based liability there must first of all be an unlawful act; even if there is no legal rule prohibiting that act, the law has assessed acts contrary to morality within the same scope. In addition to the act being unlawful or, even if not unlawful, contrary to morality, the provision requires that damage has occurred and that a causal link is established between the damage and the act envisaged by the law.

b) Strict Liability

In tortious liability, the rule is fault-based liability. The provision of BK. m.49 sets this out clearly by stating that one of the elements of a tort is fault. Accordingly, if there is no fault, there will be no liability even if the other elements of the tort are present. While this is the rule, certain social considerations and the requirements of equity have made it necessary to hold liable certain persons who are not at fault for the damage that has occurred. For this reason, the legislator has accepted that certain persons who are not at fault in the occurrence of the damage are also to be held liable for it. Being held liable for the resulting damage despite the absence of fault is called “Strict Liability”⁹.

In the new Turkish Code of Obligations, under the heading “Strict Liability” (TBK md.65-71), provisions are set out concerning, respectively, I-Equity liability, II-Liability of care and III-Hazard-based liability. Within the scope of “liability of care”, “the liability of the employer (principal)”, “the liability of keepers of animals” and “the liability of the owner of a building” are regulated separately. The provision in TBK m. 71 under the heading “Hazard-based liability and equalisation” is a new article of particular importance in terms of “strict liability” for damage. The Turkish Civil Code also contains articles on strict liability for damage. MK md. 369 regulates the strict liability of “Heads of household”, MK md.730 that of “the Owner of immovable property” and MK md.1007 that of “the State for the keeping of the land registry”. In the Highway Traffic Law, the liability of the “Motor Vehicle Operator or Vehicle Operating Enterprise” in article 85 is likewise regulated, in this context, among the cases of strict liability.

1. Ordinary Strict Liability

“Ordinary Strict Liability” is regulated in the Turkish Code of Obligations under the heading “Liability of Care”. The liability of the employer (principal), the Liability of the Keeper of an Animal and the Liability of the Owner of a Building are among these cases of liability. The Environmental Law No. 2872 dated 9.8.1983 has also regulated the liability of those who cause damage to others by polluting the environment as strict liability (ÇK. M.28/I)¹⁰. The Liability of the Head of Household in TMK m.369 and the Liability of the Owner of Immovable Property in TMK m. 730 are shown among the other cases of Ordinary Strict Liability.

TBK.m.66,67,69 and TMK m.369,730, which regulate the cases of liability of care, impose on the liable person a duty of control or supervision over the person or thing from which the liability arises¹¹. While in the cases of the Liability of the Owner of Immovable Property and the Liability of the Owner of a Building the liable persons are not given the possibility of adducing exculpatory evidence, in the other cases liable persons who adduce exculpatory evidence showing that they exercised the necessary attention and care can be released from liability.

2. Hazard-Based Liability

Our Code of Obligations No. 818 contained no general provision on hazard-based liability. With article 71 of the Turkish Code of Obligations No. 6098, our new Code of Obligations, hazard-based liability was regulated in our law for the first time by a general liability provision. In paragraph 1 of this article, whose marginal heading is “Hazard-based liability and equalisation”, the ground of liability is set out as follows: ‘‘Where damage arises from the activity of an enterprise that presents a significant degree of hazard, the owner of the enterprise and, if any, the operator are jointly and severally liable for that damage¹². By this provision the law has accepted in our legal system a case of “general strict liability based on hazard”. By the provision in paragraph 3 of the same article, “Special liability provisions laid down for a particular hazard are reserved”, it is accepted that the hazard-based liability here is general, that there are special cases of hazard-based liability, and that in such a case the provisions on special hazard-based liability will apply¹³.

PART TWO

CONDITIONS OF LIABILITY

§ 4 CONDITIONS OF LIABILITY FOR VEHICLES IN OPERATION THE MOTOR VEHICLE MUST BE IN OPERATION

I. THE MOTOR VEHICLE MUST BE IN OPERATION

Operation within the meaning of KTK 85/1 is not an economic concept such as a garage business or a fuel business. Operation is a mechanical concept based on technical foundations and relating in particular to the movement of the vehicle. For this reason, it is quite difficult to give a complete definition of the concept of operation (being operated). There are three views explaining the concept of operation: the view of putting into traffic, the view of machine technology, and the view of the hazard specific to operation (operational hazard)¹⁴; among these views, the one accepted in the Turkish Legal System is the view of the hazard specific to operation (operational hazard).

The concept of operation in KTK 85/I should be interpreted as the specific hazard created by the operation of a motor vehicle. The hazard specific to a motor vehicle, or operational hazard, means the hazard seen only or mostly in motor vehicles. A vehicle moving by engine power always carries an operational hazard and is therefore in operation. Furthermore, in cases where engine power acts upon the vehicle, or where parts of the vehicle such as the engine, headlights or horn are used in connection with its movement, there is also operation within the meaning of the KTK¹⁵.

In this case, the existence of the vehicle being in operation should be assessed separately for each concrete case, and it should be examined whether or not there is a state of operation. For example, a motor vehicle whose engine is not running may cause damage by sliding, just as it may cause damage while its engine is running and it is in motion. Therefore, acting with the aim of rigidly concretising the existence of the state of operation would mean acting contrary to the purpose of the legislator.

II. ACCIDENT

In KTK 3, a traffic accident is defined as “ An event resulting in death, injury or damage in which one or more vehicles in motion on the highway are involved.” In this sense, in order for the operator to be liable, the legislator requires certain elements to be present together. First of all, the accident must occur on the highway, one or more vehicles must be involved, and it must cause harm to a person or other damage.

Accordingly, the accident must occur as a result of an external event foreign to the injured party's material personal assets and to property assets such as the luggage he carries with him. This element serves as a boundary drawn against internal events whose cause lies within the body, in the physical and mental constitution of the injured party or in the very nature of the thing, and which cause damage occurring suddenly¹⁶.

The second element of the accident is the element of suddenness¹⁷. However, suddenness does not necessarily mean that the event occurs within a very short period of time, for example within a few seconds¹⁸.

The third element of the accident is that it is an unwanted event. The absence of will here is from the point of view of the injured party, not of the operator. In fact, whether or not the operator wanted the accident is related to the question of fault, and for this reason the result does not change whether he caused the accident intentionally, negligently or by conduct free of fault¹⁹.

According to the definition in the Law, the vehicle causing the accident, or one of the vehicles, must necessarily be in motion. The collision of an animal or a walking person with a vehicle parked at the roadside in pitch darkness does not qualify as an accident, since the vehicle is not in motion²⁰. The KTK does not directly define the concept of a motor vehicle. By contrast, the definition of a motor vehicle in the Swiss Road Traffic Act is clear, being defined as: “A motor vehicle within the meaning of this law is any vehicle that can travel on land by its own propulsive power without being bound to rails (İKTK 7/I)²¹. In this context, in order for the event to be assessed within the scope of a traffic accident, it requires together the element that the vehicle is able to move by its own propulsive power, and also the condition that the event takes place on land without being bound to rails.

The concept of highway should not be interpreted narrowly. In KTK m.3, a Highway is defined as “Strips of land, bridges and areas open to public use for traffic”.

KTK m.2, after providing that this Law shall apply on the highway, also provides that, unless there is a provision to the contrary, the provisions of this law shall also apply, among areas outside the highway, to those open to the public and to the places used for highway vehicle traffic in parks, gardens, car parks, garages, passenger and goods terminals, service and fuel stations, on access-controlled highways and in the parts open to the public of toll highways, and in the parts reserved for highway vehicles of vessels performing a public service on seas, lakes and rivers that provide the connection of a particular highway.

As can be seen, while the legislator determines the scope of application of the law by concretising certain places, by saying “those areas outside the highway which are open to the public’’ it requires that places open to the public be assessed within the scope of the highway, even though they are not concretised in the text of the article.

For all these reasons, the Court of Cassation (Yargıtay) has expressed the view that, for disputed areas falling outside the areas determined by concretisation, it should be established by carrying out an on-site inspection whether they are open to the public and, if they are open to the public, the event should be assessed within the scope of a traffic accident.

In one of its decisions the high court states: “It is established that the accident took place within the factory area and that a simple sketch was drawn up by the police concerning the place where the event occurred. In view of this situation, the court should examine the defence of the counsel for the defendant insurance company, carry out an on-site inspection where necessary, assess whether the place where the accident occurred can be regarded as a highway and whether the risk is covered by traffic insurance, and render a decision according to the outcome.”²²

Indeed, all of the decisions of the Court of Cassation (Yargıtay) to this effect state that the criterion of whether the place is open to the public must be established by carrying out an on-site inspection, and that a decision must be given only after this has been established. Consequently, in every incident, whether each locality is an area not open to public use can be established by the examination of the concrete case by experts.

III. DAMAGE

In order for the operator to be held liable under the KTK., damage must arise by reason of the operation of the motor vehicle. According to KTK md.85, the operator will be held liable if the operation of a motor vehicle “causes the death or injury of a person or damage to a thing”. At first sight, this wording of the article gives the impression that the vehicle operator is liable for all damage arising by reason of the operation of the vehicle (relating to things and to persons; pecuniary and non-pecuniary). However, an examination of the other articles shows that the KTK does not cover all damage and that, for this reason, the scope of md.85 is not so broad²³.

Damage falling within the scope of the KTK has no special feature. As regards damage and compensation, by virtue of the reference in KTK 90, the rules of the Code of Obligations on tortious acts apply²⁴.

IV. CAUSAL LINK

A) Adequate Causal Link

There must be an adequate causal link between the damage and the motor vehicle. The operation of the motor vehicle or, in an accident caused by a vehicle not in operation, the fault of the operator or of the persons for whose acts he is responsible, or a defect in the vehicle, or the act of assistance after the accident, must be the adequate cause of the damage that has occurred, and the damage that has occurred must be the adequate consequence of these causes. Indirect causation is also sufficient. For example, if a motor vehicle has frightened a person or startled an animal by its lights or noise or by appearing suddenly, the causal link is established if damage results from this²⁵.

The injured person may claim compensation by proving that the damage arose from a defect in the vehicle not in operation or from the culpable conduct of the operator²⁶.

Here, since it relates to the causal link, we must also refer to a new provision introduced by the new KTK md.85/f.III: According to the new provision introduced by this article, the vehicle operator is held strictly liable also for the damage suffered by a person taking part in assistance efforts carried out after an accident in which the vehicle was involved, while doing so. For the operator to be held liable on this ground, it is sufficient that he is held liable for the accident that occurred or that the assistance is given directly to him or to those in the vehicle. In this respect, the operator's liability on this ground is also a hazard-based liability²⁷. Where these conditions are present, the vehicle operator is also held liable for damage that is not in a direct causal link with the accident that occurred²⁸. Cases in which, after the accident, those taking part in the recovery operations of the vehicle involved in the accident suffer damage, or in which further damage arises when a new accident occurs while the injured are being taken to hospital after the accident, may be given as examples of the operator being rendered liable for damage that is not directly causally linked to the operator.

B) Interruption of the Causal Link

1. In General

KTK.m.86 provides as follows: “The operator or the owner of the enterprise is released from liability if he proves that the accident resulted from force majeure or from the gross fault of the injured party or of a third party, without any fault on his part or on the part of the persons for whose acts he is held liable and without a defect in the vehicle having contributed to the accident.”

KTK md.86 provides for three grounds that interrupt the causal link. These are force majeure, and the gross fault of the injured party and of a third party²⁹.

2. Conditions

a) One of the Grounds Interrupting the Causal Link Must Have Occurred

KTK.m.85 regulates the question of in which cases the vehicle operator shall be held liable for damage arising from an accident. If the operator proves that the conditions of force majeure, or the gross fault of the injured party or of a third party, listed in KTK m.86 among the grounds interrupting the causal link, have been fulfilled, the operator is released from liability.

Therefore, the vehicle operator will be held liable for damage arising from the operation of a motor vehicle even if he is not at fault at all. Whether or not the operator is at fault has no effect whatsoever on his liability. There is only one way for him to be released from liability, and that is to adduce the exculpatory evidence under KTK md.86. Accordingly, for the vehicle operator to be held liable, he must be unable to prove one of the cases provided for in article 86³⁰.

Apart from the cases of force majeure and the gross fault of the injured party and of a third party listed among the grounds interrupting the causal link, there are also special grounds of release. Apart from these situations, the liability relating to vehicles that are stolen or used without the vehicle operator's permission, and the liability in cases of gratuitous (courtesy) carriage or of the vehicle being made available as a courtesy, are accepted as special grounds of release.

KTK 107 provides as follows: “ A person who steals or seizes a motor vehicle by force is held liable as an operator. The driver of the vehicle who knows, or who would be in a position to learn if due care were exercised, that the vehicle was stolen or seized by force is also jointly and severally liable with him. The operator cannot be held liable if he proves that neither he nor any of the persons for whose acts he is responsible was at fault in the theft or seizure of the vehicle. The operator may have recourse against the other liable persons in cases where he is liable. Liability towards passengers who board knowing that the vehicle was stolen or seized by force is subject to the general provisions.”

If the operator cannot prove that neither he nor the persons for whose acts he is held liable were at fault in the theft or seizure of the vehicle, he cannot be released from liability. In this case, the person who stole or seized the vehicle should be held jointly and severally liable together with the operator pursuant to KTK.md.87³¹.

The matter of courtesy carriage is regulated in the 87th article of the KTK. By providing in the 87th article of the KTK that “If the injured or deceased person is being carried gratuitously as a courtesy, or if the motor vehicle has been made available gratuitously as a courtesy to the injured or deceased person, the liability of the operator or of the owner of the enterprise to which the vehicle operator is attached, and liability for damage to the vehicle in the relationship between the owner and the operator of the motor vehicle, are subject to the general provisions. The liability of the operator or of the owner of the enterprise to which the vehicle operator is attached for damage to goods carried in the vehicle other than the luggage and similar items accompanying the injured party is also subject to the general provisions.”, the legislator, while not releasing the operator entirely from liability in cases of courtesy carriage or of the vehicle being made available as a courtesy, has ensured that liability is assessed within the framework of the general provisions.

According to this provision, if the person carried free of charge as a courtesy or the person using the vehicle free of charge as a courtesy has died or been injured, the vehicle operator will be held liable not strictly, pursuant to the principle of hazard-based liability under the KTK, but according to the general provisions of the BK on fault-based liability. As a result, the vehicle operator will be able to be released from liability by proving that he was not at fault in the occurrence of the accident³².

KTK m. 87/f.II has accepted the principle applicable to courtesy carriage and to making a vehicle available as a courtesy equally for the carriage of goods other than the luggage and similar items accompanying the injured party in a traffic accident. Accordingly, the vehicle operator's liability for damage to goods carried by the motor vehicle is also subject to the general provisions of the BK on liability. The operator will be able to be released from liability by proving that he himself was not at fault in the occurrence of the accident and, as regards the persons for whose acts he is held liable, by adducing the exculpatory evidence under BK md. 66 (former BK md.55)³³.

b) The Vehicle Operator Must Have Proved Certain Matters Together

Since the KTK regulates the operator's liability as hazard-based liability, proving that he was not at fault in the occurrence of the accident or that there was no defect whatsoever in the vehicle does not secure release from liability. Apart from these two situations, the operator must also prove the existence of a ground interrupting the causal link (force majeure, gross fault of a third party or of the injured party) in the relationship between the resulting damage and the operation of the vehicle. In other words, proving neither the absence of fault and the soundness of the vehicle alone, nor the existence of a ground interrupting the causal link alone, is sufficient to be released from liability. Only if these two matters are proved together will it be possible to be released from liability³⁴.

§ 5 CONDITIONS OF LIABILITY FOR VEHICLES NOT IN OPERATION

Liability arising from a traffic accident caused by a motor vehicle not in operation (KTK 85/III) is of a complementary (subsidiary) nature. This liability can apply only to accidents that do not fall within the concept of operation. In other words, KTK 85/III cannot be applied where KTK/85/I applies³⁵.

For damage caused by a vehicle not in operation, only the vehicle operator is liable; the liability of the owner of the enterprise to which the vehicle operator is attached is not in question³⁶.

KTK 85/III provides as follows: “In order for the operator to be held liable for a traffic accident caused by a motor vehicle that is not in operation, the injured party must prove the existence of fault on the part of the operator or of the persons for whom he is responsible in the occurrence of the accident, or that a defect in the vehicle caused the accident.”

Considering the conditions of liability, namely the fault of the operator or of auxiliary persons or a defect in the vehicle, it cannot be said that KTK 85/III has brought about a significant change for the injured party. Firstly, if the operator is at fault in the occurrence of the accident, the injured party may claim compensation for the damage on the basis of BK 49. If the accident arose from the act of an auxiliary person, fault must be proved under KTK 85/III. In BK 66, however, fault is not a condition of liability; it is sufficient that the auxiliary person caused the damage. On the other hand, under KTK 85/III the operator is not given the possibility of adducing exculpatory evidence. Only with regard to a defect in the vehicle is the liability provided for by the KTK more extensive. The operator is liable even if the defect in the vehicle is not based on fault or results from the act of a third party³⁷.

KTK.m.85/IV regulates the liability of the operator and of the vehicle operating owner of the enterprise for damage caused by assistance efforts carried out after the accident. KTK.m85/IV states: “The operator and the vehicle operating owner of the enterprise may, at the discretion of the judge, be held liable for the damage suffered by the person giving assistance as a result of assistance efforts carried out after an accident in which his own vehicle was involved. However, in this case, in order for the operating owner of the enterprise to be held liable, he must himself be liable for the accident, or the assistance must be given directly to him or to those in the vehicle or to third parties who are parties to the accident.”

KTK m. 85/IV applies to the compensation of damage arising from assistance efforts carried out both after an operational accident and after an accident in which a vehicle not in operation was involved³⁸.

If more than one operator and the owners of the enterprises to which they are attached have benefited from the assistance given after the accident, they are jointly and severally liable for the damage suffered by the person giving assistance. It is accepted that, as regards the question of recourse between them, KTK m.88 and 89 should be applied by analogy³⁹.

In Turkish law, unlike Swiss law, the damage suffered by those engaged in assistance activities after an accident on that account is excluded from insurance coverage (KTK m.91 I). Consequently, it is accepted that KTK m.110 II, concerning the competent court, does not find application here⁴⁰.

§ 6 COMMON CONDITIONS OF THE FAULT-BASED LIABILITIES REGULATED IN THE KTK

In line with the purpose for which the law was enacted, the KTK mostly provides for strict liability. Nevertheless, many fault-based matters are also regulated in the KTK. The “Liability in accidents caused by a vehicle not in operation” regulated in KTK 85/III, the “ liability between operators for damage to persons” regulated in KTK 89/I and the “liability between operators for damage to things” regulated in KTK 89/II are also among the cases of fault-based liability in the KTK.

Undoubtedly, in cases where the general rules apply (in KTK 87,105/II,107/II and others), liability is determined according to fault⁴¹.

PART II

LEGAL NATURE OF LIABILITY

§ 7 COMPENSATION

The bringing of an action for compensation depends on the presence of the conditions required for tortious liability. Accordingly, in tortious liability based on fault, the conditions “that the act is unlawful”, “that the perpetrator is at fault”, “that damage has occurred” and “that there is an adequate causal link” are required. In strict liability, on the other hand, only the element of fault among the listed conditions is not required. By contrast, the presence of the other conditions is mandatory⁴².

The subject matter of the action for compensation is the making good of the damage of the claimant injured party. The damage in question may be pecuniary or non-pecuniary in nature⁴³.

I. PECUNIARY COMPENSATION

A) Determination of the Damage

1. In Determining the Damage

Burden of Proof The obligation to prove the damage lies with the injured party. Whereas former BK m. 42 f.I merely stated that “The burden of proving the damage lies with the claimant”, the new BK.md.50.f.I has introduced the provision “The injured party bears the burden of proving his damage and the fault of the person causing the damage”⁴⁴.

The fact that the burden of proving the existence and amount of the damage falls on the claimant is nothing other than a special field of application of TMK m.6.⁴⁵

The person who has suffered damage may prove it by any kind of evidence. Unlike legal transactions, tortious acts are not subject to the “rule of proof by documentary evidence” set out in HMK m. 200 (former HUMK md.288). As a result, evidence such as documents, witnesses and on-site inspection may be resorted to in order to prove the damage⁴⁶.

The damage may be so evident that no means of proof need be adduced. The rule that known (notorious) and well-known facts need not be proved (HMK m.187/f.II) (former HUMK m.238/f.II) also applies here. For example, it is evident that a person whose wife or father has been killed will suffer non-pecuniary damage. This need not be proved.⁴⁷

In that case, pursuant to TBK m.50/II, the judge determines the amount of the damage in accordance with the principles of equity, taking into account the ordinary course of events and the measures taken by the injured party. It can be seen that, under this paragraph, the judge has a broad discretionary power in determining the existence and amount of the damage. However, for this, it must not be possible to calculate the amount of the damage on the basis of actual data⁴⁸. Otherwise, the judge has not been given unlimited discretionary power.

For TBK.m.50/II to be applicable, the injured party, even if unable to adduce conclusive evidence, must have presented to the judge facts and circumstances that would give the judge a conviction as to the existence and amount of the damage. The judge must conclude from these facts and circumstances that the damage has occurred. A judge who does not have such a conviction cannot exercise the discretionary power. An abstract allegation by the injured party that the damage has occurred, or a weak probability concerning the damage, is not sufficient for proof⁴⁹. For example, a person who alleges loss of profit due to a tortious act must present to the judge means of proof, such as commercial books and witnesses, that will substantiate the accuracy of his allegation.

2. Offsetting of Benefits

In connection with the event by which he suffered damage, the injured party may also obtain certain benefits. The economic benefit that the damaging event has generated in favour of the injured party is deducted from the total damage. As a result, the actual, net damage suffered by the injured party is calculated. It can be seen that the deduction of economic benefits from the damage is an element of the calculation of the damage, because only by such an operation is the difference found between the state of the injured party's assets before and after the damaging event⁵⁰.

Since the purpose of compensation, by its nature, stems from the idea of making good the injured party's damage, the calculation must be made without causing unjust enrichment. For example, in an occupational accident, for a worker who has lost his working capacity, the pension allocated to the worker by the SSK should be deducted from the amount of compensation if it is of a nature that can be recovered from the employer by way of recourse. Otherwise, unjust enrichment will arise in favour of the injured worker and the person causing the damage will have paid compensation a second time.

3. Scope of the Damage

Damage may concern property assets or personal assets. Where the scope of the damage falls within damage to property assets: the tortious act may have caused damage to property assets. In this case, the purpose of compensation is to restore the property assets to the state they were in before the tortious act⁵¹.

As a result of the tortious act, the property may have been damaged and suffered harm that can be remedied by repair so that it can be used. In this case, the damage consists of the expenses necessary for its repair, the loss arising from being deprived of the use of the thing during the repair period, and the loss of value suffered by the thing by reason of having become damaged⁵².

The repair of a thing on account of the damage it has suffered must not lead to enrichment for the injured person. If certain parts of a vehicle damaged as a result of a tortious act have been replaced with new ones, the difference between old and new for that part must be deducted from the claimant's damage⁵³.

The damage to property assets resulting from a tortious act may not be limited to damage; the thing may have been completely destroyed. In this case, the damage may be remedied by providing the claimant with an identical thing. Where it is not possible to provide an identical thing, a new one in kind, or its value, will have to be compensated as the equivalent of the damage⁵⁴.

Where the scope of the damage falls within damage to personal assets: the BK has specifically regulated damage to personal assets under the marginal heading “Special Cases”. Here, the damage and the injured parties are determined by distinguishing according to whether the tortious act resulted in death or remained limited to injury⁵⁵.

Unfair competition is, in general terms, the abuse of the right of economic competition⁵⁶.

The provision in paragraph 1 of article 57 of the TBK, reading “a person whose customers decrease, or who is faced with the danger of losing his customers, because of the dissemination of untrue news or the making of such announcements or other conduct contrary to the rules of honesty, may request that such conduct be brought to an end. If the person acting contrary to the rules of good faith is at fault, the person injured by such conduct may bring an action for pecuniary compensation and request payment of the damage.”, shows the sanction for an act of unfair competition.

B) Determination of Compensation

1. Determination of its Form

BK md.51 (former BK m.43) has given the judge the power to determine the form and scope of compensation (its scope and manner of payment)⁵⁷.

The provision in article 51 of the TBK, reading “The judge determines the scope and manner of payment of compensation, taking into account the requirements of the situation and in particular the gravity of the fault. If it is ordered that compensation be paid in the form of an annuity, the debtor is obliged to provide security.”, has granted the judge a broad discretionary power to determine the scope and manner of payment of compensation, taking into account the requirements of the situation and in particular the gravity of the fault. The judge should determine the form of compensation within the framework of his discretionary power according to the particular features of each concrete case. When exercising his discretionary power, the judge must also take into account the rules of procedural law.

Compensation is generally awarded in money. However, by this provision the law has given the judge the possibility of deciding on a form of compensation other than money. In this sense, the judge may impose on the debtor an obligation of compensation in kind⁵⁸.

Taking into account the provision of article 26 of the HMK, regulated under the heading “Principle of being bound by the claim”, which reads “(1) The judge is bound by the relief sought by the parties; he may not decide on more than that or on something else. Depending on the circumstances, he may decide on less than the relief sought. (2)Provisions of law according to which the judge is not bound by the claim of the parties are reserved.”, the judge, as a rule, cannot determine the form of compensation in a way other than that requested. However, statutory provisions stating that the judge is not bound by the claim constitute an exception.

2. Determination of its Amount

If the conditions of liability provided for in KTK 85/I,III or IV are fulfilled and the operator cannot prove the existence of one of the grounds of release, he is definitively liable for the damage. Once the operator is liable, the judge must determine the amount of compensation he is obliged to pay. Determining the compensation, in turn, requires determining the damage. The damage determined constitutes the upper limit of the compensation⁵⁹.

Among the factors playing a role in determining the amount of compensation, the KTK provides only for the fault of the victim (m.86 II). Apart from this, as regards the form and scope of pecuniary compensation and other matters relating to non-pecuniary damages, KTK m.90 used to refer to the provisions of the Code of Obligations on tortious acts. However, the said article 90 was amended by Law No. 6704Sayılı dated 14.04.2016 to read: “Compensation within the scope of compulsory liability insurance is subject to the procedures and principles laid down in this Law and in the general conditions prepared within the framework of this Law. As regards matters relating to such compensation and to non-pecuniary damages that are not regulated in this Law and the general conditions, the provisions on tortious acts of the Turkish Code of Obligations No. 6098 dated 11.01.2011 shall apply”. For this reason, m.51 and 52 of the Turkish Code of Obligations concerning compensation for tortious acts also find application with respect to the KTK⁶⁰.

Since TBK m.51 I states that the requirements of the situation shall be taken into account in determining the scope of compensation, the judge may also reduce the amount of compensation for reasons other than those mentioned above. The cases of courtesy carriage or of a vehicle being left as a courtesy, regulated in the KTK, may be cited as examples⁶¹. The fact that the liable person (the operator) has taken measures beyond what is expected to prevent the damage from arising or to reduce the damage, the fact that a more serious damage has arisen for a reason stemming from the injured party's own constitution, the fact that the liable person would fall into poverty and the injured party is wealthy, and, apart from these, their social and economic circumstances and the weakening of the causal link⁶² are among the cases counted as other grounds for reduction.

In determining the amount of compensation for damage to property assets, the damage and the proportion of fault are decisive, and the amount of compensation may be determined by expert witnesses according to comparable values, whereas the calculation of the amounts of compensation for damage to personal assets can become more complex.

In calculations of compensation for damage to personal assets, expenses such as funeral expenses and medical treatment expenses may also be claimed. Although fault, damage and the causal link between the damage and the tortious act are important in determining the amount of compensation for loss of support, damage arising from total or partial loss of working capacity and damage arising from loss of effort, errors are frequently made in determining the amount of the damage. For example, in a traffic accident involving injury, the proportion of fault and the degree of disability can be correctly established by expert witnesses. However, one of the important matters in determining the amount of compensation is establishing the actual income situation. There is much settled case law of the high court to the effect that, where official records do not reflect the truth, the actual income situation of the injured party must be established.

For example, in one of its decisions the high court states: “in the calculation of compensation for loss of support, the calculation made on the basis of the daily earnings reported by witnesses with reference to the statement of the deceased during his lifetime was not based on sufficient investigation. Since it was stated by witnesses before the court that the deceased sold goods such as socks, forks and spoons at markets, the daily income of the deceased must be established in accordance with the truth, both by obtaining information from the local tradesmen's association and the relevant professional organisations and by such methods as the court deems appropriate, and if an amount close to the truth cannot be established in this way, the calculation must be made on the basis of the minimum wage.”⁶³ The high court has thus aimed, in determining the amount of compensation, at an assessment of the amount of compensation that seeks to reach the truth in line with the realities of the country.

C) Transfer of the Compensation Claim to Heirs

Since claims for pecuniary compensation form part of the estate, they can pass to the heirs. The transfer of non-pecuniary damages to heirs is controversial in the doctrine. The Turkish Civil Code has, in principle, adopted the mixed view. Indeed, according to TMK.m.25/IV, “A claim for non-pecuniary damages cannot be assigned unless it has been accepted by the other party, and does not pass to the heirs unless it has been asserted by the deceased.”⁶⁴ Settled case law to this effect has been established by the decisions of the high court.

In one of its decisions the high court, with the view that “The injured R.Ö. died after the incident, and before this action for compensation was brought, due to another illness. According to the Report of the Council of Forensic Medicine in the criminal file, the minor ( R. ) was injured in such a way as to leave a permanent mark and trace on the face. Again, according to the report of the Bolu State hospital in the criminal file, it is understood that this wound prevented ordinary occupation for five days and would heal in fifteen days. It can be seen that the minor R. suffered bodily harm as a result of the careless and inattentive conduct of the defendant and became entitled to claim non-pecuniary damages under article 47 of the Code of Obligations. As mentioned just above, while the injured R. was still alive, the right to non-pecuniary damages was reserved in the petition to intervene in the criminal proceedings, and it was stated that a claim would be made in this respect in the future. For this reason, after his death his heirs may now bring an action and claim non-pecuniary damages from the person who caused the damage.”⁶⁵, has considered it sufficient, for the transfer of a claim for non-pecuniary damages to the heirs, that the deceased even made a request before his death. The fact that claims for non-pecuniary damages which were not asserted and requested by the deceased before death do not pass to the heirs is a consequence of the mixed view.

II. NON-PECUNIARY DAMAGES

Non-pecuniary damage has been left outside the scope of the KTK: by virtue of the reference made in KTK 90, Article 56 of the BK applies to non-pecuniary damages. In the case of the killing or injury of a person, the judge may award non-pecuniary damages, taking into account the particular features of the event. Since BK 56 does not provide for a condition of fault, an operator liable under KTK 85 may also be held liable for non-pecuniary damages. For this reason, the grounds for reduction explained above are also valid for the determination of non-pecuniary damages. The judge awards non-pecuniary damages by also assessing the mutual faults, the gravity of the fault and of the damage, and other factors. The operational hazard of the motor vehicle is also a special circumstance to be assessed within the meaning of BK 56. The degree of the operational hazard affects the amount of compensation⁶⁶.

Since paragraph II of article 56 of the TBK, regulated under the heading “Non-Pecuniary Damages”, contains the provision “In the event of serious bodily harm or death, it may also be decided that an appropriate sum of money be paid as non-pecuniary damages to the relatives of the injured party or of the deceased”, the relatives of the injured party may also claim non-pecuniary damages. The relatives of the injured party may claim non-pecuniary damages on account of the grief and suffering occurring in their own person. For example, the siblings of an injured party who has become disabled in a traffic accident may also claim appropriate non-pecuniary damages in return for the grief and suffering they feel because of their sibling's disability, since, albeit indirectly, the relatives of the injured party have also suffered damage in their own persons on account of the accident.

§ 8 RECOURSE

The internal relationship is a matter concerning the apportionment of the damage among persons who are jointly and severally liable. If one of those obliged to pay compensation pays all or part of the compensation in the external relationship, according to which principles will he bear the damage, or within what limits will he be able to claim what he has paid from the others? The definitive apportionment of the damage among jointly and severally liable persons is precisely the problem of recourse (rücu)⁶⁷.

KTK 88/II contains two rules on recourse. The second sentence of the paragraph regulates the apportionment of the damage among motor vehicle operators. The first sentence, on the other hand, regulates the other situations (the concurrence of the operator's liability with another liability)⁶⁸.

KTK 88/II, c.2, is a special rule. The recourse scheme provided for here applies only among motor vehicle operators. 88/II,c.1 , which applies to the other situations, does not in fact contain a recourse scheme. It leaves this to the discretion of the judge⁶⁹.

The general rule regulating the internal relationship among jointly and severally liable persons is BK 62/I. According to it, in apportioning compensation among jointly and severally liable debtors, all the circumstances and conditions are taken into account, in particular the gravity of the fault attributable to each of them and the intensity of the hazard created. As can be seen, this rule does not give priority to fault or to operational hazard, and by placing the conjunction “and” between the two, it treats the effect of each of the causes giving rise to the damage as equal⁷⁰.

Indeed, KTK 88/II, which regulates the concurrence of liabilities among operators, provides that the damage is to be apportioned according to the same principles. The rule is the same in both. Unless special circumstances justify a different apportionment, the operators bear the damage in proportion to their fault⁷¹.

In this case, the operators who are jointly and severally liable together towards the injured party may have recourse against one another among themselves according to their proportions of fault.

§ 7 INVALIDITY OF AGREEMENTS EXCLUDING LIABILITY

By stating in its 111th article that “Agreements that exclude or restrict the civil liability provided for by this law are invalid. Agreements or settlements relating to the amounts of compensation that are manifestly inadequate or excessive may be annulled within two years from the date on which they were made.”, the KTK has rendered invalid agreements that exclude or restrict the civil liability provided for by law.

The high court also holds the view that “In article 111 of the Highway Traffic Law No. 2918, entitled Agreements Concerning Liability, the condition for the annulment of agreements relating to the amounts of compensation is laid down. According to that provision, agreements that exclude or restrict the civil liability provided for in this law are invalid. Agreements or settlements relating to the amounts of compensation that are manifestly inadequate or excessive may be annulled within 2 years from the date on which they were made. In order to benefit from this provision of the law, it is not necessary to request expressly and separately the annulment of the release document; just as this matter may be raised during the proceedings, a declaration of intent, made within 2 years from the date on which it was executed, that its terms are not accepted is also sufficient.”⁷²

§ 8 LIMITATION

In the KTK, limitation is regulated in m.109. According to this provision, which runs parallel to TBK m.72, “Claims for compensation of pecuniary damage arising from motor vehicle accidents become time-barred within two years from the date on which the injured party learned of the damage and of the person liable to pay compensation and, in any event, within ten years from the day of the accident (f.I). If the action arises from an act punishable by a penalty and the criminal law provides for a longer limitation period for that act, that period also applies to claims for pecuniary compensation (f.II). As in the TBK, three types of limitation period are provided for here as well, namely the two-year and ten-year limitation periods and the criminal limitation period⁷³.

KTK 109 applies only to actions for pecuniary compensation. In an action for non-pecuniary damages, article 72 of the BK, the general limitation rule, applies. However, the limitation periods of the two laws are the same. Both contain two-year and ten-year periods⁷⁴.

If limitation is interrupted against the person liable to pay compensation, it is also interrupted against the insurer. Conversely, limitation interrupted with respect to the insurer is also deemed interrupted with respect to the person liable to pay compensation (KTK 109/II)⁷⁵.

In motor vehicle accidents, the rights of recourse of the persons liable to pay compensation against one another become time-barred within two years from the day on which they fully performed their own obligations and learned of the person against whom they will have recourse.⁷⁶

BIBLIOGRAPHY

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