Evidence, Time Limits and Application in Compensation Actions

Matters to Be Determined First in a Compensation File

The legal source of liability

It is determined whether the claim arises from a tort, breach of contract, no-fault liability, an insurance contract, a public service, a criminal procedure measure or a special statute. The same event may raise more than one legal ground; however, the consequences of each ground for the parties, jurisdiction, time limits and proof must be assessed separately.

Liable persons and organizations

Besides the person who carried out the act, the employer, the operator, the owner, the contractor, the manufacturer, the importer, a health care institution, the insurance company or a public administration may be liable. In a file with more than one liable party, the external relationship, joint liability, the insurance limit and the recourse relationship among the liable parties are examined separately.

Loss and items of claim

It is investigated whether the loss is limited to existing invoices, and elements such as future treatment, care, loss of working capacity, impairment of the economic future, loss of support, repair, loss of value or use, and lost profit. Attention is paid to ensuring the same loss is not claimed twice and to the effect of social security or insurance payments on the calculation.

Fault and causal link

As much as the degree of fault, the adequate causal link between the act and the loss is decisive. The conduct of the injured person, the act of a third party, an existing illness, prior damage, force majeure or other factors that led to the loss increasing are each assessed separately.

The competent authority and the order of applications

The dispute may be heard in a civil court of general jurisdiction, a commercial court of first instance, a consumer court, a labor court, a family court or an intellectual and industrial property rights court, in the administrative courts, before the Insurance Arbitration Commission (Sigorta Tahkim Komisyonu) or before the Compensation Commission (Tazminat Komisyonu). In some files there may be an application to the insurer or the administration before litigation, mediation as a condition precedent to litigation or another special procedure.

Time limits and interim legal protection

The statute of limitations and the preclusive period differ according to the legal ground and the characteristics of the event. Where there is a possibility that evidence will be lost, assets transferred or the loss aggravated, the conditions of protective routes such as preservation of evidence, an interim injunction, precautionary attachment and a request for payment or an advance are assessed.

Evidence and Proof in Compensation Actions

The outcome of a compensation action depends not only on the amount of the loss but on proof of how the event occurred, of liability and of the causal link. Depending on the type of event, the following records may be important:

• Accident, incident, law enforcement, work accident and administrative inspection reports
• Camera footage, photographs, location and time records
• Health file, discharge summary, imaging, prescriptions, medical board and disability reports
• Payrolls, tax records, bank transactions and documents of professional income
• Regular payment and living records showing the support relationship
• Contracts, offers, orders, invoices, delivery documents and notices
• Insurance policy, damage file, loss adjuster and actuarial reports
• Technical examinations to be carried out on a product, machine, vehicle, structure or digital record
• Witness statements and the parties’ correspondence before and after the event
• Evidence in a criminal, administrative investigation, SGK or other proceeding file

Evidence should be obtained lawfully and, where possible, preserved in its original source. Early preservation is especially important for evidence that may disappear over time, such as camera recordings, a product, a vehicle, a machine or a damaged structure.

Insurance Application, Arbitration, Mediation and the Litigation Route

The correct route of application depends on the party and the nature of the dispute. In a claim under traffic insurance, a written application to the insurer may be required. In a dispute arising from a policy, if the conditions are met, the Insurance Arbitration Commission or the court route may be considered. In a commercial, employment or consumer dispute, mediation as a condition precedent to litigation may arise; the statutory exceptions for work accident and occupational disease claims are also taken into account separately.

For damage arising from an act or action of the public administration, an administrative application and the full remedy procedure may apply; for some claims arising from protective measures, the court or the Compensation Commission route may apply. Because an application to the wrong authority or by the wrong procedure may create a risk of loss of time and rights, the competent authority and the order of applications should be determined at the first stage.