İzmir Compensation Lawyer and Traffic Accident Claims

As an İzmir compensation attorney, we provide legal support in claims for pecuniary and non-pecuniary damages arising from traffic accidents, vehicle value loss, loss of earnings, loss of support and medical error. Making good the loss that arises after an accident, a work accident or a faulty medical practice is a technical process that must be conducted with the right evidence and the right calculation method.

The general basis of liability for compensation is tort: a person who causes loss to another through culpable and unlawful conduct is obliged to make good that loss; this general rule is laid down in the tort liability provisions of the Turkish Code of Obligations. For liability to arise, the elements of an act, unlawfulness, damage and a causal link must be present together. In certain situations, however, the law provides for liability without fault; the liability imposed on the operator of a motor vehicle is the best-known example. Which type of liability applies directly determines who bears the burden of proof and which defences may be raised.

Pecuniary damages cover the actual reduction in assets. In cases of bodily harm, treatment expenses, loss of earnings, losses arising from the reduction or loss of working capacity, and losses arising from the shaking of economic prospects may be claimed; these heads are listed in the provisions of the Turkish Code of Obligations on bodily harm. In the event of death, funeral expenses, treatment expenses where death did not occur immediately, losses arising from reduced working capacity, and the loss-of-support damage come onto the agenda; the heads of damage in the event of death are set out in the same Code. Non-pecuniary damages, by contrast, are the counterpart of the pain and suffering falling outside assets; in cases of serious bodily harm or death they are assessed equitably by the judge upon the claim of the injured party or their close relatives.

The circle of claimants widens according to the type of damage. In bodily harm the claim belongs, as a rule, to the injured party; in cases of serious bodily harm their close relatives may also seek non-pecuniary damages. In the event of death, those who have lost support claim their own personal loss independently of their status as heirs. As to limitation, the law provides a short period running from knowledge of the damage and of the person liable, together with a longer outer period running from the date of the act; where the act also constitutes an offence, the criminal limitation period applies. You can see the other fields we work in on our practice areas page.

The table below summarises the heads of compensation that most frequently arise in traffic accidents and similar events, together with the underlying concepts; each head is assessed according to the evidence in the particular file.

Liability in Traffic Accidents: Driver, Operator and Compulsory Third-Party Liability Insurance

Liability in traffic accidents is not concentrated in a single person. Where the operation of a motor vehicle causes the death or injury of a person or damage to property, the law holds the operator, and where applicable the owner of the undertaking to which the vehicle belongs, jointly and severally liable for that loss; the liability of the operator is laid down in the Highway Traffic Law. The operator is usually the registered owner; however, where the vehicle has been leased long term or its actual control has been left to another, the capacity of operator may change. The driver’s liability, by contrast, rests on the provisions on tort and depends on fault.

Because the operator’s liability does not rest on fault, the available defences are also limited. The operator may escape liability by proving that, without fault on their part or on the part of persons for whose acts they are responsible and without any defect in the vehicle having contributed, the accident arose from force majeure or from the gross fault of the injured party or of a third person. This burden of proof is heavy; in practice, in most files the operator’s liability continues and the debate shifts to the proportion of fault and the amount of the loss.

Compulsory motor third-party liability insurance covers the losses the operator causes to third persons within the policy limits, and taking it out is mandatory for every vehicle under the Highway Traffic Law. The injured party may apply directly to the insurer; the insurer’s liability is limited by the policy cover, and for the part exceeding the limits the operator and the driver are pursued. Since policy limits are updated every year, the cover applicable at the date of the accident in question must be confirmed from the policy itself. We address the details of motor insurance practice in our article on insurance law.

Where additional policies such as voluntary third-party liability insurance, comprehensive (kasko) cover or personal accident insurance exist, these are assessed separately. A comprehensive policy covers damage to the insured’s own vehicle, whereas a third person’s loss is claimed from the compulsory insurance; confusing this distinction can lead to loss of rights. Where more than one vehicle is involved in the accident, each vehicle’s insurer is liable in proportion to the fault of its own insured, and claims are directed accordingly.

Vehicle Value Loss and Loss of Earnings Claims, Appraisal and Expert Reports

Vehicle value loss is the drop in second-hand market value that a damaged vehicle suffers even though it has been properly repaired. The loss consists of the difference between the undamaged market value at the date of the accident and the value after repair; repair costs are separate from this head and are claimed additionally. The age and mileage of the vehicle, the nature of the damage and repairs already recorded directly affect the calculation. Where a vehicle has been written off owing to severe damage, what arises is not value loss but the difference between the vehicle’s market value and its salvage value.

The method to be applied in calculating value loss and the scope of compulsory insurance cover have changed over time as a result of the debate between the general conditions and judicial decisions. Confirming the current practice before applying therefore prevents the claim from being framed too narrowly or too widely. Obtaining an independent appraisal report in the process provides a practical basis for objecting to the amount set by the insurer’s own loss adjuster. We explain the step-by-step operation of the subject in our article on how vehicle value loss is recovered.

Loss of earnings is the most contested head in bodily harm files and is divided in two. Temporary incapacity covers the earnings foregone during the period of treatment and recovery when the person cannot work; that period is established by medical reports. Permanent incapacity arises where there is lasting disability and rests on the disability rate in the board report issued by an authorised health institution. The report must be drawn up under the disability regulation in force at the date of the event; a report drawn up under the wrong legislation has to be obtained again at a later stage of the proceedings, prolonging the process.

At the calculation stage the court obtains a report from an expert working in the field of actuarial science. The expert calculates the present value of the loss by weighing together the injured party’s income at the date of the event, the disability rate, their age, their remaining life expectancy under the life table accepted in judicial practice, and the allocation of fault. Where income cannot be documented, the minimum wage is taken as the basis; a higher income that can be documented is established through payroll records, tax records and professional chamber data. Submitting a reasoned objection within time to data errors in the report is one of the stages that most determines the outcome.

Loss-of-Support Compensation: The Concept of Support and the Calculation Method

Loss-of-support compensation covers the loss suffered by those deprived of the assistance the deceased provided during their lifetime. The loss here is entirely personal and independent of the status of heir; a person who has renounced the estate may therefore still bring a claim. The concept of support is not tied to a statutory maintenance duty: anyone who provided assistance regularly and continuously, whether in money, labour or services, may be regarded as a supporter. A contribution made within the household through childcare and domestic work is likewise accepted as support with a monetary equivalent.

For the spouse, children and parents, the support relationship is accepted as a presumption according to the ordinary course of life; in situations such as siblings, a fiancé or a person living together in fact, proof of the support relationship with concrete evidence is expected. The breadth of the circle of claimants determines the evidentiary structure of the file from the outset. We address the scope and limits of the subject in detail in our guide to loss-of-support compensation.

The calculation method consists of a series of steps, each of which may be debated separately. First the supporter’s income at the date of the event is determined; where income cannot be documented, the minimum wage is taken as the basis. Then the remaining life expectancy of the supporter and of those supported is established under the life table accepted in judicial practice; the support period is the span in which those two periods intersect. For children, support continues as a rule until the age determined according to their educational situation. Next, the share the supporter would have set aside for themselves is deducted from their income, and the remainder is divided into shares among those supported.

At the final stage the amount found is converted into its capitalised present value in order to bring future payments to the present day, and a reduction is applied where the allocation of fault and equity so require. Payments already made by the insurer and the capitalised value of the income awarded by the social security institution are also set off; documenting past payments is therefore essential. Another point that generates debate in practice is the extent to which the deceased’s own fault is reflected on those supported; this subject has been shaped by judicial decisions and must be assessed separately in each file. Since the coefficients and figures used in the calculation are updated periodically, the amount to be claimed is determined according to the data current at the time of the application.

Application to the Insurer, the Insurance Arbitration Commission and the Court Route

For claims within the scope of compulsory motor third-party liability insurance, a written application to the relevant insurance institution before filing suit is laid down in the Highway Traffic Law as a condition of action. The accident report, documents relating to damage and treatment, and papers showing the basis of the claim are attached to the application. If the insurance institution does not give a written answer within the short period set by law, or the answer given does not meet the claim, the injured party may file a lawsuit or apply to the Insurance Arbitration Commission. Where this stage is skipped, the action may be dismissed for want of a condition of action without the merits being examined.

The Insurance Arbitration Commission is a route established for resolving insurance disputes and bound by the periods set in law (Insurance Law). In practice it delivers a result faster than the courts. Its scope, however, is limited: application to the Commission may be made only against the insurance institution, while claims to be directed at persons such as the driver, operator or vehicle owner must be raised before the courts. If part of the claim exceeds the policy limit, recourse to the courts is additionally required for the excess.

Monetary thresholds are laid down in law for the possibility of objecting to arbitrators’ decisions and for a decision being treated as final. Since these thresholds are updated each year in line with the revaluation rate, stating a figure on this page would not be correct; the current thresholds must be confirmed from the Commission’s announcements at the time of the application. When choosing a route, the amount of the claim, the identity of the opposing parties, the state of the evidence and the likelihood of the decision becoming final are weighed together.

On the court route, collecting the receivable does not end when the judgment becomes final; if payment is not made, the judgment must be taken to enforcement. At this stage, drafting the proceeding request correctly and framing the interest claim fully from the outset prevents later losses. You can find detailed information on enforcing a judgment and the subsequent collection stages on our enforcement law page.

Compensation Arising from Medical Error (Malpractice) and the Expert Process

In allegations of faulty medical practice, the first distinction is whether the event is a complication or a breach of the duty of care. An undesired outcome that arises despite conduct in accordance with the standards accepted in medicine is regarded as a complication and does not, as a rule, give rise to liability for compensation. By contrast, where there has been a departure from medical standards at the stage of diagnosis, treatment or follow-up, and a causal link can be established between that departure and the loss, liability comes onto the agenda. The physician’s undertaking is not a particular outcome but conduct exercising the care required by medicine.

Informed consent is the second decisive element of these files. The patient must have been informed, in language they can understand, about the procedure to be applied, its alternatives, its possible risks and the consequences of remaining untreated; the burden of proving that the duty to inform was discharged rests on the physician and the health institution. Consent forms drawn up in standard and general terms may not discharge that burden on their own. We address the legal framework of the subject in our article on liability arising from medical error.

What is decisive in the proceedings is the expert examination. The file is sent to panels composed of academics working in the relevant branches of medicine or to the relevant specialist board of the Forensic Medicine Institution; the panel assesses whether the practice complied with the standards accepted in medicine. Where there is a contradiction between reports, a supplementary report may be sought from a new panel. For this reason, bringing the patient file, the test and imaging records, the operation notes and the nursing observation forms into the case file in full is the most critical step of the process.

Whom liability is directed at varies according to where the service was provided. For practices in public health institutions, as a rule it is the administration and not the staff member that is liable; a full remedy action is filed before the administrative courts alleging service fault, and the relevant administration must be approached within the periods set by law before the action (Administrative Procedure Law). For private health institutions and independently practising physicians, the action is filed before the judicial courts; since the competent court may change according to the nature of the relationship, clarifying this point before filing is advisable.

The Relationship Between the Criminal File and the Compensation File: Negligent Injury and Drink-Driving

Traffic accidents usually give rise to two separate files: a criminal investigation and compensation proceedings. Where someone is injured as a result of the accident, the offence of negligent injury arises, and where someone dies, negligent homicide; both offences are laid down in the Turkish Criminal Code. In the simple forms of negligent injury listed in the law, investigation and prosecution depend on a complaint; situations involving conscious negligence fall outside that rule. Exercising the right of complaint within the period set by law is decisive for the criminal file to be opened.

Driving under the influence of alcohol requires an administrative fine and the withdrawal of the driving licence where the limit set in the law and the relevant legislation is exceeded (Highway Traffic Law). Where the driver has lost the ability to drive safely, the offence of endangering traffic safety may additionally arise (Turkish Criminal Code). These findings directly affect the assessment of fault in the compensation file. We describe the criminal dimension of traffic offences in our article on negligent injury and traffic penalties, and the general defence process on our criminal law page.

The link between the two files is not one-way. The civil judge is not bound by the criminal judge’s decision as regards the assessment of fault and the determination of damage; an acquittal delivered by the criminal court does not by itself extinguish the compensation claim (Turkish Code of Obligations). By contrast, final findings on the factual events in the criminal file, site inspection records and accident reconstruction reports constitute strong evidence in the compensation file. For this reason, gathering evidence correctly at the early stage of the criminal investigation may determine the fate of the later compensation proceedings.

The effect of drink-driving on the insurance relationship is a separate area of debate. Since compulsory insurance protects the third party, the insurer cannot as a rule refuse its liability towards the injured party on that ground; it may, however, have recourse against its own insured for the amount paid where the conditions are met. The criterion sought in practice is that the alcohol be shown to have been effective in the occurrence of the accident, and the burden of proof on that point lies with the insurer. A refusal or recourse claim resting on the alcohol finding alone is not considered sufficient without a technical assessment of how the accident occurred.

The Division of Competence Between İzmir Civil Courts of First Instance and Commercial Courts

Determining the competent court correctly in a compensation action is decisive if the file is not to suffer months of delay. Compensation actions in tort brought only against the driver, operator or vehicle owner are, as a rule, heard before the civil court of first instance. Where the insurance company is also joined as a party, the dispute takes on the character of a commercial action because it arises from the insurance contract, and the commercial court becomes competent. In files where the insurer is named as a defendant together with the others, the whole of the claim is heard before the commercial court.

In some claims, other branches of jurisdiction or specially competent courts come into play. Compensation claims arising from work accidents and occupational diseases are heard before the labour court, and claims based on the service fault of a public administration before the administrative courts. In accidents arising from deficiencies in road construction and maintenance, liability may be directed at the relevant administration, in which case the administrative route is followed. In commercial compensation claims whose subject matter is the payment of a sum of money, applying to mediation before filing is a condition of action; the nature of the file must therefore be settled at the outset.

As to venue, the rule on tort gives the claimant a choice: the action may be brought before the court of the place where the act was committed, the place where the damage occurred, or the domicile of the injured party. That rule allows an injured party residing in İzmir to bring their action at the İzmir Courthouse in Bayraklı even where the accident occurred in another province. Where the action is brought before a court lacking competence, the court delivers a decision of non-competence and application must be made to the competent court within the short period set by law; if that period is missed, the action is deemed never to have been filed. We separately address the operation of claims arising from work accidents on our employment law page.

Points Considered in Preparing the File

• Early collection of the accident report, photographs of the scene and vehicles, and any camera footage
• Examination of alcohol and speed measurement records and the technical reports in the criminal investigation file
• Hospital records, discharge summary, operation notes and the medical board report showing the disability rate
• Payroll records, tax registration and professional chamber data establishing the income situation
• Insurance policies, the damage file and documents concerning payments already made
• Documenting the written application to the insurance institution in dated and recorded form