REDUCTION OF LIABILITY IN TRAFFIC ACCIDENTS

REDUCTION OF LIABILITY IN TRAFFIC ACCIDENTS

 If the operator cannot rely on grounds that exempt them from liability in traffic accidents, grounds that mitigate liability may apply to the incident. Since traffic accidents give rise to tort liability, the general provisions of the Turkish Code of Obligations apply to such incidents. Article 52 of the Turkish Code of Obligations sets forth grounds for mitigation of liability; however, since the Highway Traffic Law specifically regulates grounds for mitigation of liability, those rules apply. This can be explained by the principle of the precedence of special provisions.

Sections 86(2) and 87(1) of the KTK apply.

• Mitigation of Liability Due to the Fault of the Injured Party

 As is well known, the gross negligence of the injured party is established as a ground for exemption from liability. If the injured party is grossly negligent, the operator will not be held liable for the accident and, consequently, will not be required to pay compensation. Any negligence on the part of the injured party other than gross negligence reduces liability and serves as a basis for a reduction in compensation. This provision is set forth in Article 86/2 of the Highway Traffic Law.

• Limitation of Liability in the Case of Transport for Personal Use or Use of the Vehicle for Personal Use

 In determining liability, both the operator and the business owner under the operator’s control are held liable. The principle of strict liability applies; however, certain provisions exist to avoid outcomes that would be contrary to equity. One such provision involves reducing the operator’s liability when the vehicle is used or transported as a favor, since the operator provides the vehicle not for a specific benefit but as a favor. The operator gains nothing in return. If the operator were held liable in such a situation, it would lead to results contrary to fairness. The legislature has addressed this situation in Article 87/1 of the Highway Traffic Code and states that the general provisions of the Turkish Code of Obligations apply in this regard. In other words, if a vehicle provided as a favor causes an accident, this serves to reduce the operator’s liability. Article 52 of the Turkish Code of Obligations thus applies to these specific circumstances.

The components are as follows:

• The existence of a relationship is required.

 The vehicle must be provided to the person, or the person must be transported in the vehicle. In the case of transportation as a favor, the person gets into the car of their own free will. In other words, if the operator forces the person to get in, this provision of the law will not apply because there is no relationship of favor. Whether the offer comes from the other party or the operator is significant in determining the scope of the regulation. The fact that the carrier provides transportation free of charge and without hassle reduces the operator’s liability. The operator does not provide the vehicle to the person using it as a favor for a specific benefit. The situation described above applies here as well.

 Transportation or use of the vehicle must be free of charge

For a favor to exist, it must be given without expecting anything in return. If it were free, it would not lead to a reduction in liability because the concept of "favor" would not exist; however, not every free situation qualifies as a "favor." For example, transporting family members is not a "favor" but a family-based obligation. Additionally, there is no "favor" relationship in situations such as an employer dropping off an employee at home or a buyer test-driving a vehicle. In other words, the operator must have no personal interest in the transportation.

• It requires the death or injury of the person who is being transported or who is using it

The death or injury of a person who is being transported for personal reasons or who is using the vehicle for personal reasons must occur. In other words, this harm must occur for the operator’s liability to arise.

   Discount Amount

Under Articles 51 and 52 of the Turkish Civil Code, the extent of the reduction is determined based on the degree of fault and principles of equity. For example, it is generally accepted in legal doctrine that the reduction rate increases if there is a special benefit to the passenger. If the passenger shares fault, the reduction is proportionately greater. For example, this would be the case if a passenger knowingly boards a vehicle driven by an intoxicated driver.

*Although Article 111/1 of the Road Traffic Code (KTK) is cited regarding whether a liability waiver agreement can be entered into with passengers transported as a favor or with the driver, since Article 86 of the Turkish Civil Code (TBK) refers to general provisions, such liability waiver agreements will also be valid under this scope.

Saadet Kartalci