Compensation for Personal Injury
A general overview of the heads of compensation claimable under Turkish law,
the principles of calculation and the judicial practice.
Structure of the Report
01Dear Sir or Madam,
This information report has been prepared in relation to compensation disputes arising from personal injury, which form an important part of our firm’s practice, in order to clarify the questions and points of assessment most frequently encountered in practice.
The purpose of the report is to provide a general framework on the heads of compensation claimable for personal injury under Turkish law, their legal bases, the principles of calculation and the judicial practice, and thereby to contribute to a common understanding of the process. In this context, the matters that frequently arise in practice are summarised in the light of the current legislation and the settled case-law.
The heads claimable for personal injury are expressly regulated under Article 54 of the Turkish Code of Obligations.
02
Heads of Compensation Claimable for Personal Injury and Principles of Calculation
Under Turkish law, personal injury is not limited to direct loss of earnings. The harm caused to a person’s physical integrity is assessed together with its effects on working capacity, quality of life and future economic expectations.
In this context, injured persons may claim the following heads:
- Compensation for temporary incapacity for work
- Compensation for permanent incapacity for work (disability)
- Medical treatment costs
- Temporary and/or lifelong care costs
- Loss of earnings
- Damage arising from the impairment of the economic future
03Scope of the Heads
Compensation for temporary incapacity for work
Denotes the temporary loss suffered by the person because they cannot work, or their working capacity is reduced, during the recovery process after the accident. This period covers the person’s treatment and rehabilitation.
Compensation for permanent incapacity for work (disability)
Denotes the lifelong reduction in working capacity caused by permanent disability arising after the accident. This damage covers not only loss of earnings but also the greater effort required to continue performing the same work.
Medical treatment costs
Covers all medical expenditure incurred, or required to be incurred, because of the accident. This includes surgery, hospital, medication, physiotherapy and all similar health-care costs.
Temporary and/or lifelong care costs
Costs arising where the person requires the assistance of a third party in order to carry on their daily life. These costs may be claimed even if a carer is not in fact engaged, provided that a need for care exists.
04Scope of the Heads
Damage arising from the impairment of the economic future
Denotes the damage arising where physical or aesthetic changes appearing in the person’s life after the accident adversely affect their opportunities in career, promotion, finding work and social life.
Loss of earnings
Denotes the actual reduction in income the person suffers because they cannot work after the accident, or must earn a lower income. This damage is determined on the basis of the difference between the income obtained before the accident and the income obtainable after it. Where the income cannot be proved by documents, the minimum wage is taken as the basis in practice.
Disability compensation: reduction in the person’s physical capacity (loss of effort).
Impairment of the economic future: reduction in the person’s social and professional opportunities.
Loss of earnings: actual reduction in income or increase in liabilities.
05How is Disability Determined?
The disability rate is determined on the basis of the regulation applicable at the date of the incident. This rate may change during the proceedings and cannot be regarded as final at the outset.
The regulations applied in our law, by period, are as follows:
Regulation on Social Insurance Health Procedures
31.08.2013
Regulation on the Procedures for Determining the Rate of Loss of Working and Occupational Earning Capacity
Regulation on Disability Determination Procedures
Regulation on the Disability Criterion, its Classification and the Health Board Reports to be Issued for Disabled Persons
Regulation on Disability Assessment for Adults
06How is the Amount of Compensation Calculated?
The method of calculation under Turkish law: the progressive annuity method.
Under this method, the active/passive period (working age and retirement age), the life expectancy and the actual earnings are taken as the basis. The active and passive periods of life are taken into account on a state-by-state basis according to the conditions in Germany. These matters are also set out in the report contents sent to you.
The General Civil Chamber of the Yargıtay (Turkish Court of Cassation) has laid down a clear principle on this point:
“The damage must be compensated according to the conditions of the currency and economic environment in which it arose.”
General Civil Chamber of the YargıtayAccordingly, for persons living abroad, income and life expectancy are calculated according to that country.
07Cases That Do Not Fit the Scheme
On the other hand, in cases that do not fit this scheme, permanent incapacity for work is not claimed under this calculation even though the client is alive.
For instance, in the Rita K. file, the client has a permanent disability that continues to this day. However, the client was over 82 years old at the time of the accident and, according to the life table, was close to the end of her passive period. Although the client is still alive and has a permanent loss, in order not to depart from court practice and not to burden the insurer, the loss was limited not to her remaining life expectancy but to the six-month period up to the preparation of the letter sent to the legal-expenses insurer.
Likewise, even where there is a personal-injury file, no claim is made where no permanent disability has arisen.
08Actuarial Calculation and Our Office’s Approach
As these calculations require expertise, reports are obtained from actuarial experts. The calculation is carried out in a manner that withstands judicial review. By way of example:
As can be seen, this shows that our claims are cautious and consistent with court practice.
09Why is There Compensation Where There is No Loss of Income?
Under Turkish law, permanent incapacity for work is:
not a loss of income but a loss of effort (capacity).
The Yargıtay has expressly stated this point:
“Even if the disability does not prevent the claimant from doing the same work, damage has occurred where, because of the disability, they perform the work with greater effort.”
YargıtayFor this reason, we wish to state clearly:
- 01Compensation arises even where there is no loss of income.
- 02For this reason, students without income, homemakers and even retirees without active employment are also entitled to this compensation.
10Are the Benefits Received Deducted from the Compensation?
The basic principle under Turkish law: the wrongdoer may not benefit from the resources of the injured party.
“The fact that the damage is made good by the injured party’s own means or by family members does not remove liability.”
4th Civil Chamber of the YargıtayIt is furthermore accepted that even social benefits received in foreign countries may not be deducted from the compensation.
This applies both to compensation for temporary and for permanent incapacity for work. Because Germany is a social state, it is within our knowledge that during periods of temporary incapacity the persons are paid approximately 70% of their salary by the Krankenkasse. However, under Turkish law, where the damage arises as a result of a traffic accident or a medical operation, the benefits the injured party receives from the Krankenkasse or Privatversicherung may not be deducted from the compensation.
11Lifelong Care Costs
Under Turkish law, care costs are not a claim confined to serious and exceptional situations but a head of damage that arises where the person cannot carry on their daily life independently.
According to the settled approach of the Yargıtay:
A disability of 100% is not required for care costs.
The decisive criterion: the extent to which the person can independently carry out their daily activities (eating, drinking, dressing, moving about, etc.).
In this context, serious disability (for example 60–70% and above), dependence on others in daily life and a need for constant support are regarded as sufficient for a care-costs claim.
12The Right Arises Even If Care Is Not Actually Provided
An extremely important principle under Turkish law is this: it is not necessary that a carer has been engaged. The existence of a need for care is sufficient.
Indeed, the Yargıtay has expressly held:
“The fact that the injured party’s need for care is met by family members does not remove the wrongdoer’s liability.”
YargıtayThe rationale of this approach is: even if the care is in fact provided by a family member, this constitutes labour with an economic value.
Accordingly, the approach “the family is caring, therefore there is no damage” is expressly rejected under Turkish law.
In the files in which we claim care costs, the clients are seriously disabled, dependent in their daily activities and often receive household or care support.
13Impairment of the Economic Future
Under Turkish law, this head is a type of damage that is independent of and separate from permanent disability compensation. It therefore does not constitute a duplicate (double) claim.
Impairment of the economic future means the harm to the person’s future economic and social opportunities, independently of their earning capacity.
According to the Yargıtay, this damage is assessed on the basis of:
- a reduction in the opportunity for advancement (promotion) at work
- greater difficulty in finding work or in career development
- disadvantages arising from social environment and appearance
- a reduction in the chances of marriage
such effects.
In particular, in cases of loss of limbs, aesthetic impairment and deformation of physical integrity, the Yargıtay may accept an economic loss of 30 – 50%.
14Loss of Earnings
Loss of earnings denotes the reduction in the income actually obtained by the person following personal injury. This damage is direct and measurable and is calculated on the basis of concrete data.
In Which Situations Does It Arise?
Loss of earnings arises in situations such as an actual reduction in the person’s income, an increase in liabilities, or deprivation. For example: missing a commercial opportunity, moving to a lower-paid job, or becoming unable to carry on a secondary occupation directly constitutes loss of earnings.
Loss of earnings = actual reduction in income / increase in liabilities
Disability compensation = loss of effort/capacity (no loss of income required)
On this distinction, a person may receive disability compensation even if they continue to work or have no income; for loss of earnings, however, an actual fall in income is required.
15On What Basis Are Non-Pecuniary Damages Determined?
Non-pecuniary (moral) damages are the counterpart of the pain, grief and suffering experienced by the person because of the personal injury and of the decline in quality of life; under Turkish law, the determination of their amount is left directly to the discretion of the judge. Indeed, according to settled practice, the judge determines the amount of non-pecuniary damages by assessing together the particulars of the specific case, the severity of the damage, the situation of the parties and the principle of equity. For this reason, no mathematical or exact method of calculation can be spoken of in respect of non-pecuniary damages.
Nevertheless, when forming non-pecuniary damages claims in the files we handle, the clients’ subjective or unfounded demands are not taken as the basis; on the contrary, the most objective and foreseeable approach possible is adopted. In this context, the precedent decisions closest to the specific case are examined, and in particular the court decisions in Germany, the country where the clients live, are taken into account.
The method we follow is based on taking the average of several decisions of a similar nature and thereby determining a reasonable range. In this way, the claims are kept neither excessively low nor unrealistically high; an amount that is consistent with the specific case, balanced and defensible is put forward. In this respect, it cannot be said that our non-pecuniary damages claims are based on any arbitrary or expansive approach.
16Set of Precedent Decisions
The set of precedent decisions we use is based on a systematically compiled and up-to-date database. In this framework, the most comprehensive set of German court decisions available to us dates from 2021, and our claims are shaped in the light of this data set. Our non-pecuniary damages claims are therefore not determined at random but are formed on the basis of a particular judicial practice and of comparative law.
Our non-pecuniary damages claims are not subjective demands based on client statements but measured and foreseeable claims determined, with respect for judicial discretion, by taking comparative court decisions into account.
The essential aim of this approach is not to enrich the injured party but to contribute to the determination of non-pecuniary damages consistent with the severity of the specific case and in keeping with equity.
17The Course of Personal-Injury Cases
While personal-injury cases take on average 5–6 years even in domestic files, in files with a foreign element this period extends to as much as 10 to 12 years. These files require not only legal handling but also serious organisation, coordination and endurance.
Moreover, in addition to the costs mentioned above, in this type of file the courts, at stages such as the institutions where the clients received treatment abroad, the investigations into their social and economic situation, and the fee inquiries from official bodies in Germany, carry out on average at least ten items of foreign correspondence. Let us make this stage a little more concrete.
18The Cross-Border Service Process
First, the documents to be sent abroad are drawn up and translated into German by us. The court then sends them to an official translator.
5.000,00 TLThe fee for cross-border service is then paid by us.
700,00 TL + 250,00 €As a third stage, the documents go abroad, and then documents in the official German language arrive from Germany.
—Afterwards, although at this stage they are again translated into German by us, the court sends them to an official expert.
5.000 TLWe wish to note that these are the fees paid where we provide the translation; for at this stage the official expert essentially confirms our translations. Otherwise the fees are at least 10,000 TL, and therefore, to make the process more economical, our own translators are also brought in.
~22.000 TL
19Burdens Beyond Legal Handling
Because in a significant part of personal-injury files the clients live abroad, the process gives rise not only to legal but also to practical and organisational burdens. In this context:
- organisation of forensic-medical examinations and hospital procedures
- planning of flight tickets and accommodation and payment of their costs
- hotel–hospital–airport transfers, assignment of a driver
- provision of an interpreter
- one-to-one support during the examination processes
are organised by us, and these costs are often not passed on to the legal-expenses insurer.
Moreover, because in practice the forensic-medical examination processes are long and demanding, in order to spare the clients hardship, private examinations are organised at our expense and the doctors’ fees are likewise borne by our office. The fees paid to the doctors vary according to their specialty. Since in most of our files the client’s physical disability concerns the specialties of orthopaedics, neurology and forensic medicine, payments of between 1,500–2,000 € have to be made merely to arrange the dates of these examinations and to ensure that the clients can be examined under the proper conditions.
20On Our Office’s Approach
The working philosophy adopted by our office is not limited to providing legal representation but is based on the meticulous conduct of all legal processes that will ensure the effective and complete redress of the damage suffered by our clients.
In this context, in certain files, even though no separate authorisation had been given by the legal-expenses insurer, the extraordinary legal remedies deemed necessary were pursued, with the costs borne entirely by our office, in order to prevent our clients from suffering any loss of rights.
Personal-injury files are highly specialised disputes involving lengthy proceedings, numerous medical and actuarial examinations, international correspondence, coordination with foreign institutions, organisational processes and substantial financial obligations. For this reason, the activities carried out by our office are not confined to legal representation; in order to prevent our clients from suffering loss of rights, a comprehensive process of coordination and support is often conducted that goes beyond the legal obligations.
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ClosingOur Wish
We hope that this information report will contribute to a better understanding of the general framework of compensation practice for personal injury under Turkish law and of the way in which these files are conducted.
Should any further information or explanation be required on the matter, we respectfully inform you that we are always glad to provide support.
Yours faithfully,
Caner Law Firm
22Contact
Caner Law Firm
Mansuroğlu Mah. 288/3 Sok. No:3, Selvili2 Apt. B-Blok D:17 K:6, 35535
Bayraklı / İzmir
+90 531 217 48 40
+90 232 464 06 30
+90 232 463 06 29
canerlawfirm.com
This booklet is for general information only; it does not constitute legal advice on any specific case.