Accidents at work are seldom confined to a medical problem; they produce economic consequences that permanently narrow the employee’s earning capacity and, in some cases, leave the family without support. An insured person whose physical or mental integrity is harmed while the work is being performed, or for a reason connected with the workplace, may require the employer to make good the loss suffered. In cases of serious injury, permanent incapacity for work and death, this right of claim is conferred on the employee or on those entitled through them.
The employer’s obligations include establishing a safe working environment, applying occupational health and safety measures in full, and exercising a duty of care towards the employee. Where these obligations are not properly discharged, the employer’s civil liability for the resulting loss arises. The principal factors that determine the outcome of the proceedings are the allocation of fault between the parties, the disability percentage established, the employee’s level of pay and the actuarial methods applied.
Payments made to the insured person by the Social Security Institution do not bar a separate claim for damages against the employer; those payments are taken into account only at the calculation stage. In this respect, damages arising from occupational accidents are disputes that call for technical calculation expertise alongside legal knowledge.
In this briefing note we examine, in turn, the bases of claims for pecuniary and non-pecuniary damages arising from an accident, how the calculation is constructed, the steps to be taken after the accident, the conduct of the proceedings and the applicable time limits.
The Concept of an Occupational Accident and Its Definition Under Act No. 5510
The scope of an occupational accident is drawn in Article 13 of the Social Insurance and Universal Health Insurance Act No. 5510. Under that provision, events that harm the insured person physically or mentally and that occur while they are present at the workplace, on account of the work carried out by the employer, while they are away from the workplace on duty, or while travelling to and from work in a vehicle provided by the employer, are treated as falling within this scope.
For an event to qualify as an occupational accident, the insured person must have suffered harm and an adequate causal link must be capable of being established between the event and the work performed. It is not essential that the accident occurred within the boundaries of the workplace; any event that can be connected with the performance of the work may be taken into consideration.
Events Treated as Occupational Accidents Under Social Security Legislation
Act No. 5510 accepts events occurring in the following circumstances as occupational accidents:
- Events occurring during the journey to and from work in a shuttle vehicle allocated by the employer
- Accidents encountered by a female insured person exercising her nursing rights during the period in which she has left in order to feed her child
- Harm suffered by the insured person while away from the workplace on assignment
- Events arising on account of the work being carried out by the employer
- Accidents occurring at a moment when the insured person is within the boundaries of the workplace
The occurrence of any of the circumstances listed allows the event to be characterised as an occupational accident and gives rise to social security entitlements.
Events Occurring Outside the Workplace and in Company Transport
The concept of an accident is not confined to events occurring inside a factory, a construction site or an office. Events encountered by an employee who is outside the workplace because they have been assigned there by the employer are addressed within the same scope. Examples include an employee sent out of town who is involved in a road traffic accident on the way, an employee injured during a business visit, and an event occurring in transport provided by the employer.
The decisive criterion is that the event is connected with the performance of the work. By contrast, harm suffered by the employee during an activity pursued entirely for private purposes and incapable of being associated with the work falls outside the scope.
Points of Distinction from Occupational Disease
An occupational accident is an event that arises through a sudden external effect. In the case of occupational disease, the harm stems from a deterioration in health that develops over time as a result of the nature of the work performed.
The injury of an employee who falls from a height belongs to the first group, whereas a lung condition arising in an employee exposed to chemical substances over many years belongs to the second. The one involves a single, sudden event; the other, prolonged exposure.
In both situations the insured person’s social security entitlements arise; the legal characterisation to be made in an action for damages and the conditions of proof may, however, differ.
Persons Who May Be Held Liable for an Occupational Accident
In proceedings for damages, the question of who bears liability is determined through fault and the causal link. Because of the duty of care owed to the employee and the obligation to take occupational health and safety measures, the employer has a broad sphere of liability. Nevertheless, the features of the particular case may also bring the principal employer, the sub-employer, the occupational safety specialist and third parties within the scope of liability.
The Civil Liability of the Employer
Occupational Health and Safety Act No. 6331 and the Turkish Code of Obligations impose on the employer an obligation to provide a safe working environment and to exercise a duty of care towards the employee. Civil liability arises where the employer fails to take occupational health and safety measures, fails to carry out a risk assessment, fails to supply the necessary equipment, or fails to give the employee adequate training.
Although liability rests on fault, in occupational accident files it is in practice very difficult for the employer to establish that it was free from fault. Escaping liability is possible only where unavoidability, force majeure or the employee’s gross fault is proved.
Liability of the Principal Employer and the Sub-Employer
Where the person involved in the accident works within the sub-employer’s organisation, the principal employer and the sub-employer are jointly and severally liable for the loss. The employee may claim the whole of the sum due from both employers together or may proceed against whichever of them they choose.
Since the principal employer is under an obligation to supervise the implementation of occupational health and safety measures at the workplace, loss sustained by the sub-employer’s employee also falls within its sphere of liability. That liability expresses the external relationship towards the employee, not the internal relationship between the employers themselves.
The Position of the Occupational Safety Specialist
The fact that occupational health and safety services have been procured externally, or that a specialist has been assigned at the workplace, does not remove the employer’s liability. The specialist may, however, incur liability in proportion to their own fault where they fail to perform their duties properly, fail to identify risks or fail to give the necessary warnings.
In that event the employer may seek recourse against the specialist at fault for the damages it has been required to pay.
The Decisive Role of the Allocation of Fault
The degree of fault is the basic criterion in determining both liability and the sum to be awarded, and it is as a rule established by an examination by a court-appointed expert.
An employee’s failure to comply with safety rules, failure to use protective equipment or departure from the instructions given constitutes contributory (shared) fault and may lead to a reduction in the damages. Since the safety obligation placed on the employer weighs more heavily, however, primary liability is in practice most often left with the employer.
Heads of Damages That May Be Claimed
Where the employee’s physical or mental integrity is harmed or the employee loses their life, an action for pecuniary and non-pecuniary damages may be brought against the employer. Which heads arise is shaped by the nature of the event, the disability percentage, the position as to fault and the extent of the loss.
The core of these actions is formed by pecuniary damages and non-pecuniary damages; in the event of death, those entitled may in addition claim compensation for loss of support.
Pecuniary Damages: Incapacity for Work and Loss of Support
The purpose of pecuniary damages is to make good the economic losses arising from the accident; in most files it constitutes the heaviest head in terms of amount.
a) Compensation for Permanent Incapacity for Work
Where the accident has caused a permanent reduction in the employee’s working capacity, compensation for permanent incapacity for work is claimed on the basis of the disability percentage. The calculation is constructed on the present-day value of the earnings the employee is deprived of in the future.
The principal factors affecting the calculation are as follows:
- The separation of the active and passive periods from one another
- The percentage of incapacity for work established
- The allocation of fault between the parties
- The level of pay, determined either net or gross
- The employee’s occupational position and career expectations
- Age and the remaining life expectancy derived from it
This exercise is carried out on actuarial principles on the basis of a court-appointed expert’s report.
b) Losses from Temporary Incapacity for Work
The loss of pay suffered by an employee unable to work while treatment continues is likewise claimed as pecuniary damages. The temporary incapacity allowance paid by the Institution is deducted from the calculation of loss.
c) Compensation for Loss of Support in the Event of Death
Where the accident has resulted in death, the spouse and children deprived of the support of the deceased employee, and under certain conditions the mother and father, may claim this compensation.
The elements taken as the basis of the calculation are as follows:
- The allocation of fault
- The ages of those entitled
- The period over which the support would have continued and the shares apportioned
- The income level of the employee who lost their life
The actuarial method of calculation is applied to this head as well.
Non-Pecuniary Damages
Non-pecuniary damages aim to make good, to a degree, the pain, distress and mental exhaustion experienced by the employee or by those entitled as a result of the accident. The purpose is not to make good an economic loss but to provide moral satisfaction.
In determining the amount, the court has regard to the following criteria:
- The settled practice of the Court of Cassation in this field
- The economic and social circumstances of the parties
- The disability percentage sustained by the employee, or the fact of death
- The degree of fault attributed to the employer
- The manner in which the event occurred and its gravity
In accidents leaving serious disability or resulting in death, the sums of non-pecuniary damages awarded are observed to rise markedly.
Treatment, Care and Other Expenses
Expenses incurred because of the accident that are not met by the Institution may also be claimed as part of the pecuniary damages. This head covers the costs of an accompanying person and of transport, the cost of medicines and prostheses, treatment expenses, and carer’s fees together with the costs of continuing care. Particularly in cases of serious disability, the cost of continuing care constitutes a substantial head in its own right.
The Relationship Between Institution Payments and Damages
Permanent incapacity income, death income or other payments made by the Institution do not prevent the employee from proceeding against the employer. Under the prohibition on double payment, however, the heads borne by the Institution are deducted from the pecuniary damages.
In addition, where the Institution establishes that the accident occurred through the employer’s fault, it may bring a recourse action against the employer.
How Are Occupational Accident Damages Calculated?
The sum to be awarded is determined on the basis of the present-day value of the actual and probable economic loss that has arisen. A large number of technical inputs enter the calculation, such as age, income, disability percentage, allocation of fault, remaining life expectancy, the division between active and passive periods, discounting and payments by the Institution.
The courts have this exercise carried out by court-appointed experts specialising in actuarial science. The loss so found is first reduced according to the degree of fault, after which the payments made by the Institution are deducted under the prohibition on double payment.
The Actuarial Calculation Method
The calculation is built on the TRH 2010 life table, technical interest (discounting) and the division between active and passive periods.
Active period: the period during which the employee is accepted as capable of working; in practice the limit is most often taken as the age of 60. Passive period: denotes the remaining life expectancy over which the loss of support continues after retirement.
The principal inputs to the calculation:
- Set-offs of income and allowances made by the Institution
- Discount coefficients and technical interest
- The allocation of fault between the parties
- The disability percentage, or in the event of death the shares of support
- The insured person’s age, sex and remaining life expectancy
- Net pay, generally determined on an all-inclusive basis, and regular additional payments
The mechanism in outline:
(Annual net income × active period coefficient) + (Annual share of support × passive period coefficient) → effect of disability/death → application of fault → SGK set-off
In the actual calculation, discounting is applied separately for each year and table values are drawn on.
The Effect of the Degree of Fault on the Amount
Once the total loss has been found, the damages are apportioned in line with the parties’ shares of fault.
Example:
- Employer: 70% at fault
- Employee: 30% at fault
On this allocation, 70% of the pecuniary loss calculated may be claimed from the employer.
Points to note:
- In files where there is more than one party liable (principal employer, sub-employer, third party), the allocation of fault affects the extent of the joint and several liability.
- Because the safety obligation borne by the employer is a heavy one, primary fault is attributed to the employer in the great majority of files.
- In situations such as failing to use personal protective equipment or acting contrary to instructions, the employee’s contributory fault brings the damages down.
How Is the Disability Rate Determined?
Disability is the expression, as a percentage, of the loss of working capacity occurring after the accident, and it is the principal determinant of the damages.
The process of determination:
- The principles governing the determination of the rate of loss of working capacity and of earning capacity in an occupation
- Where the report is challenged or where there is a conflict between reports, a report from the Council of Forensic Medicine or from a university hospital
- Reports issued by the SGK Health Board and by authorised hospitals
Its effect:
- A rise in the rate directly increases the amount of damages.
- In the event of total incapacity for work, that is a disability of 100%, the calculation is made at the highest level.
- The finalisation of the rate most often determines the outcome of the file.
An Illustrative Calculation of Damages
The example below has been simplified purely for the purpose of illustration; in real files discounting, the passive period and set-offs by the Institution also enter the exercise.
Simplified calculation:
- Earnings over the active period: 360,000 × 25 = TRY 9,000,000
- Effect of disability: 9,000,000 × 40% = TRY 3,600,000
- Application of fault: 3,600,000 × 70% = TRY 2,520,000 (approximate pecuniary damages)
Notes:
- The result changes once the passive period and discounting are taken into account.
- Where the Institution has awarded permanent incapacity income, the capitalised value of that income is set off.
- Where the employee is young, the pay high and the disability serious, or in the event of death, the sums rise markedly.
Critical Points in Practice
- The pay taken as the basis of the calculation is the all-inclusive wage, comprising bonuses, gratuities and regular fringe benefits.
- Even in files where pay is at the level of the minimum wage, the damages may reach considerable sums.
- In the event of death, the shares of support relating to the spouse, the children and the mother and father are included in the calculation, as are the possibilities of remarriage and of new support.
- Interest runs as a rule from the date of the event; a different assessment may be made in respect of non-pecuniary damages.
- Objections directed at the court-appointed expert’s report may materially change the outcome.
Steps to Be Taken After an Occupational Accident
Whether the steps taken after the event are apt and timely is decisive both for the protection of social security entitlements and for the course of any action brought. The process is composed of the links of notification to the Institution, medical reports, the gathering of evidence, the criminal investigation and the proceedings for damages.
The Duty to Notify the Institution and Its Time Limit
Once the accident has occurred, the employer is under a duty to notify the Social Security Institution of the event within 3 working days at the latest.
Where notification is not made at all, or is made late:
- proving that the event was an occupational accident may become more difficult,
- the payments made by the Institution may be recovered from the employer by way of recourse,
- an administrative fine is imposed on the employer.
It is also open to the employee to apply directly to the Institution seeking a determination of the accident.
Medical Reports and the Disability Assessment Process
The hospital records created immediately after the accident, discharge summaries and documents relating to treatment are the strongest evidence both for the Institution’s procedures and for the proceedings for damages.
The process generally follows this sequence:
- The provision of first intervention and the creation of the hospital record
- The issue of temporary incapacity reports
- The completion of the treatment stage
- Where permanent impairment remains, the determination of disability
The Council of Forensic Medicine or an authorised medical board most often becomes involved in determining the rate.
Preserving Evidence and Proving the Event
Proof carries decisive weight in these files, and for that reason evidence must be preserved immediately after the accident.
The evidence that comes to the fore in practice is as follows:
- Hospital and Institution records
- Risk assessment documents
- Occupational safety reports
- Camera footage
- Witness accounts
- The occupational accident report
Where circumstances require, the taking of evidence may be sought from the court.
The Criminal Investigation
Where the accident has resulted in serious injury or death, the public prosecutor opens an investigation for the offences of negligent injury or causing death by negligence.
The witness statements, expert examinations and fault reports produced in the criminal file also carry strong evidential value for the proceedings for damages. The decision of the criminal court does not, however, bind the civil judge; it constitutes only strong evidence.
How Is an Action for Damages Brought?
An employee or those entitled who intend to claim pecuniary and non-pecuniary damages must act in accordance with the rules of procedure. Matters such as subject-matter jurisdiction, time limits, the allocation of the burden of proof and the examination by court-appointed experts directly affect the outcome.
Is Mediation a Procedural Requirement?
Actions for pecuniary and non-pecuniary damages arising from an occupational accident fall outside the scope of mandatory mediation. The employee or those entitled may therefore apply directly to the Labour Court.
The parties may nevertheless go to a mediator voluntarily before bringing an action and seek a settlement. In cases of serious disability and death, attempts at settlement before proceedings are frequently encountered in practice.
The Court with Subject-Matter and Territorial Jurisdiction
Subject-matter jurisdiction in these actions lies with the Labour Court.
As to territorial jurisdiction, the claimant is afforded a choice:
- The court of the place where the accident occurred
- The court of the employer’s place of domicile
- The court of the place where the workplace at which the employee performed the work is situated
The claimant may opt for any one of these courts.
The Statute of Limitations
The general limitation period for claims for damages arising from an occupational accident is 10 years.
Where the event also constitutes an offence (such as causing death by negligence or negligent injury) and the criminal limitation period is longer, that period is taken as the basis.
In events resulting in death, the period begins to run from the date of death.
The Burden of Proof
As a rule the burden of proof lies with the claimant. The claimant is expected to establish;
- that the event was in the nature of an occupational accident,
- that they suffered a loss,
- that a causal link exists between the loss and the accident.
The matters set out above are for the claimant to demonstrate.
The employer, for its part, may escape liability if it proves that it took the necessary occupational health and safety measures and that the event stemmed from unavoidability or from the employee’s gross fault.
Given the weight of the duty of care owed to the employee, establishing an absence of fault is very difficult in practice.
On-Site Examination and Court-Appointed Expert Reports
Because these files are technical in nature, the court generally has three separate expert examinations carried out. These examinations are grouped under the headings of fault, disability and the actuarial calculation of damages.
On-Site Examination at the Scene of the Event
The court may order an on-site examination at the workplace where the event occurred. This exercise allows the manner of occurrence, the conditions at the workplace and the occupational health and safety measures applied to be observed on the spot.
A mechanical engineer, an occupational safety specialist or technical court-appointed experts are generally present during the on-site examination, and the following points are assessed:
- whether the manner of occurrence described is technically capable of having happened,
- the organisation of the work and the content of the risk assessment,
- the existence of safety procedures, warning signs and protective equipment,
- whether the safety measures provided for were in fact put into practice,
- the condition of the machinery, equipment and protective systems,
- the physical environment in which the accident occurred and the working conditions.
The importance of the on-site examination increases further where the parties’ accounts of how the event occurred conflict. The expert report drawn up following the on-site examination provides the court with important technical material for determining the degree of fault and liability.
The Fault Assessment (Occupational Safety Expert)
The fault assessment appraises the manner in which the accident occurred and the adequacy of the occupational health and safety measures taken. The report prepared by an occupational safety specialist or by technical court-appointed experts seeks answers to the following questions:
- whether the event can be assessed as falling within unavoidability,
- whether the employee departed from the instructions given to them,
- whether protective equipment was supplied to the employee,
- whether the obligations to provide training and to carry out a risk assessment were discharged,
- whether the employer applied the safety measures provided for.
The parties’ degrees of fault are determined on the strength of the report. The fault report is one of the most critical technical documents directly affecting the sum to be awarded.
The Disability Assessment (Medical Expert / Forensic Medicine)
This examination is intended to establish the percentage of the loss of working capacity resulting from the accident, and it is most often conducted on the basis of reports issued through;
- the Council of Forensic Medicine,
- the medical boards of university hospitals,
- other authorised medical boards.
The reports issued through those bodies form the basis of the exercise.
In determining the rate, whether a permanent impairment exists, the percentage of the loss of working capacity, the reduction in earning capacity in the occupation and the state of recovery after treatment are assessed together. The higher the rate, the greater the damages awarded.
The Actuarial Calculation of Damages (Actuarial Expert)
Once the degrees of fault and disability have been clarified, the actuarial expert calculates the pecuniary damages. In this technical exercise, the basis is taken as;
- the insured person’s age and remaining life expectancy,
- the income level on the basis of the all-inclusive wage,
- the active and passive periods,
- the disability percentage,
- the allocation of fault,
- the capitalised value of the income awarded by the Institution.
At the end of the calculation the total economic loss suffered by the employee is established, and the court founds its judgment on that sum.
Damages in Occupational Accidents Resulting in Death
Where the accident results in death, the relatives deprived of the deceased’s support may claim pecuniary and non-pecuniary damages from the employer. These files are more extensive than actions concerning incapacity for work, and compensation for loss of support constitutes the heaviest head.
The calculation is carried out by the actuarial method, having regard to the age and income of the deceased employee, the allocation of fault, the position of those entitled and the duration of the support.
Compensation for Loss of Support
This head is intended to make good the economic loss suffered by the persons to whom the deceased employee provided material support during their lifetime, by reason of their being deprived of that support.
The elements entering the calculation are as follows:
- the death income awarded by the Institution,
- the division between the active and passive periods,
- the parties’ shares of fault,
- the ratios in which the support is apportioned among those entitled,
- the ages and life expectancies of those entitled,
- the income level of the deceased employee and their working life.
In a calculation carried out on actuarial principles, the shares of support are most often established in favour of the spouse and children. Where the employee was young and their income high, the sum of damages rises markedly.
Who Are the Persons Entitled?
Those who may claim damages are the persons to whom the deceased employee in fact provided support or would have been expected to provide support in the future.
In practice this group is composed of the following persons:
- The surviving spouse
- The children
- The mother and father, provided that they can prove the relationship of support
The remarriage of the spouse may bring the support to an end. As regards children, the duration of support is most often established on the basis of their educational position.
The share of each person entitled is calculated separately.
Determining Non-Pecuniary Damages
In accidents resulting in death, the relatives have the right to claim non-pecuniary damages. This head is in the nature of a means of satisfaction intended to assuage in part the pain and suffering experienced.
In assessing the amount, the court has regard to the following criteria:
- the case law of the Court of Cassation on the subject,
- the social and economic position of the parties,
- the degree of closeness between the claimant and the deceased employee,
- the age of the employee who lost their life,
- the gravity of the fault attributed to the employer,
- the manner in which the event occurred.
In fatal accidents involving gross fault and neglect, the non-pecuniary damages awarded are observed to be capable of reaching considerable levels.
The Independent Legal Assessment
Occupational accident files are disputes managed through technical reports as much as through legal characterisation. The consistency or conflict between the reports on fault, disability and the actuarial calculation determines the sum to be awarded more often than the arguments on the substance of the action. It is therefore of critical importance that the evidential record is established from the first day of the process and that reports are challenged in good time and on technical grounds.
On the employer’s side, the defence centres on demonstrating, by reference to documents, that occupational health and safety obligations were discharged. Keeping training records, risk assessment reports and records of the handover of protective equipment in good order directly affects the course of the fault assessment.
When a road map is drawn up in a particular file, the following headings should be given priority:
- Documenting from the outset the character of the event as an occupational accident and the causal link
- Checking whether the duty to notify the Institution was discharged within time
- Examining by which body and on the basis of which legislation the disability rate was determined
- Verifying whether payments by the Institution were set off at their capitalised value
- Assessing the starting date of interest separately for pecuniary and non-pecuniary damages
- Correctly identifying the shares of support and the circle of persons entitled in the event of death
Independent Legal provides advisory services and conducts litigation throughout the whole of the process in disputes arising from occupational accidents, from the taking of evidence and the scrutiny of court-appointed expert reports to the recovery of the damages.