22 Jan Who Can Claim Non-pecuniary Damages As a Result Of a Work Accident Resulting In Death?
The definition of the work accident is defined in the Social Insurance and General Health Insurance Law. ARTICLE 13- ‘‘ Occupational accident; a) the insured in the workplace, b) (Amendment: 17/4 / 2008-5754 / 8 art.) Due to the work carried out by the employer if the insured is working independently on his own name and account, for the work he is carrying out; (d) (Amended: 17/4 / 2008-5754 / 8 art.) The nursing woman insurer under article (a) of the first paragraph of Article 4 of this Law, According to the legislation, the time allocated for giving milk to the child, e) Insured people, a vehicle provided to the employer during the arrival of the place where the work is done, and the insured person immediately or later physically or spiritually making the event that becomes disabled.
In order to be awarded compensation for work accidents, a loss must occur as a result of an existing and unlawful act. There should also be a causal link between harm and verb. The nature of the legal liability of the employer due to the work accidents at work is based on the opinion adopted by the Supreme Court in previous decisions. In this case, the employer’s liability cannot be mentioned if there is no appropriate causal link between the defective action of the employer and the loss. If there is an appropriate causal link, this will result in the right to bring compensation for material and non-pecuniary damages. In accordance with Article 4 of the Law on Occupational Health and Safety, the employer is obliged to ensure the occupational health and safety of the employees.
The relevant article of law regulating non-pecuniary damage: Turkish Code of Obligations m.56 ene. In the event of serious bodily harm or death, he or she may decide to pay an appropriate amount of money in respect of non-pecuniary damage to the relatives of the deceased or to the deceased. Zarar Ağır
What is understood here from the relatives of the deceased is a matter of debate. Non-pecuniary damage due to death is independent of inheritance; However, even if you are an heir to the deceased, if you do not feel a spiritual pain due to death and no emotional agitation, you will not be awarded moral compensation. In short, the term ilişki close ölüm is to be understood as someone who is genuinely upset about the death of a person, who is in intimate relationship with him.
The mine accident, which killed 301 people in Soma on 13 May 2014, is one of the biggest and most painful events of our country. In the case of two brothers who lost their lives in this mine accident, the Court of Cassation ‘close to hayat commented in two different ways in three months apart. In the local court, two siblings were sued separately and the court together with the father and sister, and the grandmother and grandfather who lived together paid 20 liras of compensation and the case was transferred to the Supreme Court. The Court of Appeals upheld the first brother’s decision. It was stated by the Court of Cassation that deterrence was important in non-pecuniary damages, that it should be determined that there should be non-pecuniary damages at rates of deterrence, and that the rights of the people and the real life were the human life.
However, the same apartment for the second sibling and the grandfather of the opposite direction was decided by the unfair decision of the unfair decision has broken. The reason for the dead and there is no real connection between the deceased and the grandfather of the grandfather for the decision of the rejection of non-pecuniary damage. The Court of Cassation 21. The unanimous decision of the Court of Cassation, both three months apart from the same dispute, has been unanimously resolved.
Decision of the Supreme Court on the subject
T. C. YARGITAY 21. LAW OFFICE E. 2017/3077 K. 2017/5161 T. 12.6.2017
DAVA: The applicants asked the applicant to be awarded compensation for the non-pecuniary damage resulting from his death at work.
The Court of First Instance on the part of the defendant üzerine. and. deputies appealed to appeal law.
District Court of Justice, defendants Ad A.Ş. and. deputies refused to dismiss the appeal.
The decision of the Regional Court of Justice was decided by the defendants Ad A.Ş. and. on the appeal of the appeal was understood to be in the duration of the appeal of the paper in the file was read, the file was read and the following decision was determined.
DECISION: The case concerned the request of the insured to remedy the moral damages of the relatives due to the death of the insured.
It was decided by the Court to dismiss the case because of the hostility of the defendant….
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Due to the work accident caused by the file coverage, all the defect reports received were not flawed to the insured persons who died or were injured.
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The framework of the obligation of the employer to ensure the health and safety of the employees is drawn in Article 4 of the Occupational Health and Safety Law No. 6331. In this context, the employer said, lar After the work is specified that the employees are obliged to provide their work health and safety, a number of principles are included in which they will be obliged to comply. In such Article 5, the principles to be followed by the employer during the protection to be realized by the said obligations are determined. In article 10, while the health and safety in the workplace is provided, the issues that the employer is obliged to take into account in the risk assessment study are determined. (HGK .09 / 10/2013 dated, 2013 / 21-102 Essential, 2013/1456 Decision)
Following the above-mentioned explanations, Article 417 (2) of Turkish Code of Obligations No. 6098, which was regulated by the contemporary approach as a provision of Article 332 of the Code of Obligations (818); Mak Employer shall take all necessary measures to ensure occupational health and safety at the workplace and ensure that the equipment and tools are kept intact; all kinds of occupational health and safety in the workforce is obliged to comply with all kinds of precaution, stating that the Labor Law amd 77/1. as provided for in paragraph 3; Provisions regarding the legal nature of the responsibility arising from the service contract have been terminated by the provision that the employer is subject to the provisions of the liability arising from the violation of the contract, the loss of the body integrity or the violation of personal rights due to the violation of the contract, it is foreseen that the contractual provisions of the contract will be applied in the compensation of damages due to death or damage to the body integrity or violation of personal rights.
The provisions of articles 4 and 5 of Law No. 6331 and the provisions of the occupational health and safety regulations adopted accordingly should be considered as the criteria that objectify the responsibility of the employer. Therefore, the failure to comply with the technical business rules in the legislation should be regarded as the defective behavior of the employer. However, the employer should not only compensate for the written rules, but also the defective damages in the case of non-written and contrary to the measures required by the technology.
On the other hand, even though the objectified defect brings the responsibility of defect closer to flawless responsibility, it cannot transform it into perfect responsibility. Because, with some exceptions, the existence of a defect is essential for the employer’s responsibility. However, the Turkish Code of Obligations 417/2. Article 6 of the Constitution and the provisions of the Law No. 6331 have enlarged the responsibility of the employer in accordance with the principle of objective defect responsibility.
The situation that will free the employer from the responsibility due to the damaging event is the disconnection of the appropriate causal link between the action and the loss. As with perfect responsibility, the responsibility of the fault is also the causal link; force majeure may be interrupted due to the severe defect of the third party. It is not possible to go to the responsibility of the employer in the case of proof that the appropriate causal link has been cut. (HGK, 20/03/2013 dated, 2012 / 21-1121 Principal, 2013/386 Decision)
It is useful to explain the main employer-sub-employer concepts in order to solve the conflict in a healthy manner.
According to Article 2 of Law No. 4857, the relationship established between the employer, the employee and the employer to the real person working in the worker, the real or legal person or the institutions and organizations that do not have a legal personality, is based on the employment of a worker.
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Article 2/7 of Law No. 4857 seeks to protect and protect workers’ rights arising from the Labor Law, contract and collective bargaining agreement. Otherwise, it would be possible for the employers who want to get rid of their obligations arising from the Law no. 4857 from their obligations by giving the division or its attachments to the other people in a foul position.
The joint responsibility of the employer and the subcontractor is “joint responsibility işveren. Although the principal employer does not have a direct service contract, the employer is jointly liable for the pecuniary and non-pecuniary damage caused by the occupational accident or occupational disease of the subcontractor, in accordance with paragraph 2 of Article 6 of the Labor Law. For this reason, in case of worker or death of a subcontractor who is subject to occupational disease or occupational injury, he / she may open the proceedings against the main employer and subcontractor who are jointly responsible for the compensation or against the main employer or subcontractor.
On the other hand, it is decided that the contract between the real employer and the subcontractor belongs to the subcontractor for the liability of the material and moral compensation related to the work accident or occupational disease; it does not bind workers or heirs who are not parties to this contract.
In addition, both in the UK 47 and in Article 56 of the TBK no. 6098, it is foreseen that the judge may decide to pay an appropriate amount of money in respect of non-pecuniary damage to the person who is injured or who is near the deceased, taking into account the characteristics of the incident, if the physical integrity of a person is damaged. . The amount of money that the judge will decide to give to the relatives of the deceased or to the relatives of the deceased must be in accordance with justice. This money, which is to be awarded, has a unique character, which has a similar function to compensation that will lead to the birth of spiritual peace. It is not a punishment, nor does it aim to compensate for the damages of the mamelek law. The limit of this compensation must then be determined according to its purpose.
In the case of non-pecuniary damages, the deterrence issue has been emphasized in old countries. In developing law, this approach reveals the need to appreciate the unjustified actions directed against people’s body and spirit, or the satisfaction of non-pecuniary damage in rates of dissatisfaction as well as a sense of satisfaction in taxpayer behavior; It emphasizes that the rights of the people come before everything.
When these principles are observed; it is human life and it is not possible for any value to compensate for the deep affliction it has opened near the loss of this life. The aim here is to give you a little bit of a sense of relaxation; On the other hand, the harm side of the attention and attention to show a sanction, to be a deterrent, to be deterrent. (HGK 23.6.2004, 13 / 291-370)
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CONCLUSION: In the light of the explanations above, it is understood that the articles in the file, the reasons that the decision is based on the legal reasons, and especially the failure of the deceased in the event, and the possibility of re-evaluation of the defect distribution among those who have defects in the occurrence of the work accident in the future, and the possibility of reconsideration in the future, and, for the reasons, the decision of the defendants deputies against the rejection of all appeals in accordance with the procedure and the law of the decree, on 12/06/2017 unanimously decided. ”
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