The questions below offer a general framework on pecuniary and non-pecuniary damages, loss and causation, traffic accidents and insurance compensation. In a specific case, time limits, documents and the regulations in force are assessed separately.
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In which cases can pecuniary and non-pecuniary damages be claimed?
Once the conditions of liability required by law are met, pecuniary damages can be claimed and, if the conditions are met, non-pecuniary damages as well.
For pecuniary damages, the nature and amount of the loss are examined; for non-pecuniary damages, a violation of personality rights or the relevant special statutory ground is examined. Liability may arise from breach of contract, from a tort, or from a special case of liability regulated by statute. Elements such as fault, loss, unlawfulness and an adequate causal link are assessed according to the type of liability that applies. The relief sought and the starting date of interest must be framed correctly.
How are loss and the causal link proved in a compensation lawsuit?
The extent of the loss and the adequate cause-and-effect relationship between the loss and the act are proved through concrete documents.
Invoices, bank and income records, medical documents, appraisal reports, incident reports, camera footage, contracts and witness statements are assessed according to each item of loss. It cannot be assumed that every loss resulted from the incident; a pre-existing condition, the influence of a third party and the conduct of the injured person may be taken into account. An expert examination may be needed for the calculation. Whether an action for an indeterminate claim or a partial action can be brought is examined according to the conditions of determinability as at the date the lawsuit is filed.
How are claims arising from a tort distinguished from claims arising from breach of contract?
The basis and the regime of proof differ between a tort and a breach of contract; in some cases the same incident may give rise to more than one ground of liability.
In contractual liability, a valid obligation relationship, the breach of the obligation and the consequences of the loss are examined. In a tort, the unlawful act, fault or the relevant no-fault liability provision, the loss and causation are assessed. Standing to be a party, the acts of auxiliary persons, limitation periods and the burden of proof may differ on each route. The same loss cannot be recovered twice; the choice of legal ground must be consistent with the relief sought.
Who determines the degree of fault in compensation for a traffic accident?
Fault is assessed not only on the basis of the report, but through technical evidence and, where necessary, an expert examination.
The traffic accident report, camera footage, vehicle damage, brake marks and findings at the scene should be examined together. The scope of the review in insurance arbitration and that of court proceedings may differ.
Is there a fixed tariff for calculating non-pecuniary damages?
No; the seriousness of the incident, the interference with personality rights and equity are the basis.
The effects of the injury or assault, the circumstances of the parties and the conditions of the specific case are assessed. Non-pecuniary damages are not used as a means of punishment or enrichment; it is important to give reasons for the amount claimed.
If the amount of the loss is not known at the outset, can a lawsuit not be filed?
If the conditions are met, the options of an action for an indeterminate claim or a partial action can be considered.
The condition of objective impossibility of determination under Article 107 of the Code of Civil Procedure (HMK) should not be confused with mere difficulty in making the calculation. The type of claim, court fees, limitation periods and the consequences of amendment (ıslah) or of increasing the claim should be examined in advance.