The issue to be addressed in this article is the reflections of the compensation for deprivation of support on occupational accidents. As a result of deaths arising from occupational accidents, lawsuits for compensation for deprivation of support and moral damages are filed in order to protect the rights and receivables of the relatives of the deceased, to relieve their grief and sorrow arising from the loss of the deceased, and to compensate for the economic loss they have experienced or are likely to experience because they cannot benefit from the income of the deceased. In this article, the following issues will be discussed respectively: the definition of occupational accident, the title of the persons who may claim for deprivation of support and non-pecuniary damages, the legal basis of the compensation for deprivation of support, the causal link between the occupational accident and the result of death, the nature of the support relationship between the beneficiary and the deceased, how the compensation calculation is made and the duration of the support, where the competent and authorized court is located.
Undoubtedly one of the most intricate areas of labor law is work accidents and compensation cases arising from work accidents. In the Article 13 of the Law No. 510, the cases considered as occupational accidents are defined as follows: “Occupational accident; a) While the insured is at the workplace, b) (Amended: 17/4/2008-5754/8 Art.) Due to the work being carried out by the employer, if the insured is working independently on his own behalf and account, due to the work he is carrying out, c) When the insured, who works for an employer, is sent to another place outside the workplace on duty, d) (Amended: 17/4/2008-5754/8 Art. ) The event that occurs during the time allocated by the breastfeeding female insured within the scope of subparagraph (a) of the first paragraph of Article 4 of this Law to give milk to her child in accordance with the labor legislation, e) The event that occurs during the transportation of the insured to and from the place where the work is carried out by a vehicle provided by the employer and that immediately or subsequently makes the insured physically or mentally disabled.”. As can be seen, the definition of occupational accident is considered in an extremely broad perspective. For this reason, the compensation calculations to be made for accidents classified as occupational accidents also cover a large mass on the same scale.
In cases where the victim dies as a result of a work accident, the persons who benefit from the support of the victim in his/her health are called beneficiaries. The definition of beneficiary is broader than the concept of heirs, and the number of parties to the compensation for deprivation of support may therefore concern a wide range of people. These beneficiaries generally consist of the family members of the deceased and, in some specific cases, of the persons who, with the support of the deceased, meet their needs such as subsistence, education, expenses, etc. In other words, in order to have the title of beneficiary, it is not required that the persons making the claim are in a relationship of descendancy with the deceased, i.e. that they are blood relatives. For this reason, although the persons who can claim compensation for deprivation of support are called beneficiaries, these beneficiaries can be anyone who proves that they benefited from the support of the deceased in his/her health.
Compensation for Deprivation of Support is essentially based on the regulation titled “Death and Bodily Damages” set out in Article 53 of the Turkish Code of Obligations No. 6098. Since the last paragraph of this article includes the losses suffered by “persons deprived of the support of the deceased” among the damages suffered in the event of death, the Turkish Code of Obligations is the basis of the lawsuits claiming compensation for deprivation of support. The basis of the liability imposed on the employer as a result of occupational accidents arises from the employer’s breach of the obligation to supervise the employee. The important issue here is the nature of the employer’s responsibility, and the extent to which the employer is at fault in the occurrence of the work accident must be determined. Because the employer does not have a perfect liability in the occurrence of an occupational accident. If this is the case, first of all, the percentage of fault of the employer in the work accident should be determined, and then the result of the employer’s violation of the employer’s obligation to take care of the employee should be imposed on the employer as compensation within this percentage. (For these reasons, without obtaining a fault report, it is inappropriate to resist the decision to reject the claim for non-pecuniary damages on the grounds that no fault can be attributed to the insured or the defendant, considering the nature of the incident and the way it occurred. Court of Cassation General Assembly of Civil Chambers 2012/1121 E., 2013/386 K.)
In addition to holding the employer liable for the work accident, there must also be a causal link between the death and the work accident. This is because the fact that the victim had a work accident may not be directly related to the occurrence of death. Although there have been concrete incidents contrary to this situation, it is very common in the ordinary course of life that there are people who die as a result of a work accident, for example, due to a wrong medical intervention made to them, or who die due to their own faulty negligent behavior because they did not accept medical intervention after the work accident. In such cases, in other words, in cases where the causal link between the death and the work accident is broken, the employer’s liability will of course not be possible.
If there is a causal link between the occupational accident and the death event, if the occupational accident occurred as a result of the employer’s negligent behavior and failure to supervise its employee, and if the employer’s responsibility has arisen, if other procedural conditions are also present, then there is no obstacle to claiming compensation for deprivation of support. However, in this case, the nature of the support between the requesting person and the deceased should be examined. As stated above in the explanation on the title of right ownership, there is no requirement to be a blood relative of the deceased or to be one of the heirs of the deceased in order to be entitled. However, if the deceased actually and continuously provides assistance to the requesting person, regardless of whether it is more or less, the existence of support can be mentioned here. On the other hand, it should be noted that this support is not only material support. If the service is active and regular, it is sufficient to be considered as support. (For example: It is not obligatory for the assistance to be of monetary nature only. Acts of service performed actively and regularly are also sufficient for a person to be considered as a support. (15th Civil Chamber of the Court of Cassation 26.12.1975, 4177-5185) Support may not necessarily be in the form of money or material contributions. It can also be in the form of various services and assistance. 4th Civil Chamber of the Court of Cassation.HD.01.02.2011, E.2009/14007 – K.2011/932))
The issues to be considered when making the calculation in terms of compensation for deprivation of support are as follows:
- The date of birth and death of the deceased is determined and the age of the deceased is determined.
- If there is a difference in time between the date of death of the deceased and the date of the accident, the date of the accident should also be specifically determined.
- The remaining life expectancy of the deceased should be calculated and the probable date of retirement should be determined.
- The age of all claimants at the date of the accident should be determined and the remaining life expectancy should be determined separately for each of them.
The duration of the support cannot be calculated without making the aforementioned determinations. Because the duration of the support is limited to the life of the deceased. The probable life expectancy of the deceased and all beneficiaries should be calculated so that the persons who will live longer than the deceased or who will probably die before the other beneficiaries can be identified. Therefore, the age of the claimants is a very important consideration. On the other hand, if the persons claiming compensation are the children of the deceased, the periods of benefiting from the support are evaluated separately. According to the decisions of the Court of Cassation and the established practice, the period of benefiting from the support of the beneficiary daughters is determined according to the age at which there is a high probability of their marriage, which is 18 years old in villages and 22 years old in cities. However, in accordance with the principle of the superiority of reality over assumptions, the period of benefit from support should be determined according to the actual situation. In determining the period of benefiting from the support for the beneficiary male child; the period after the completion of the age of 18 until the date of completion of the age of 25 due to higher education should be taken as basis. However, we do not agree with this opinion. Because we are of the opinion that a child needs the presence and support of his/her mother or father for life. For this reason, we believe that it should be accepted that the children benefit from the support throughout their lifetime, just as it is recognized for the deceased’s spouse.
Another important element that must be mentioned when talking about the right holders is the decision of the Grand General Assembly of the Court of Cassation Unification of Jurisprudence (“GGACCUJ”) dated 2016/5 E., 2018/6 K. 22.06.2018. “Article 417/3 of the Turkish Code of Obligations No. 6098 (“TCO”) stipulates that the compensation of damages arising from the death of the employee due to the employer’s breach of law and contract is subject to the provisions of liability arising from breach of contract. As for the calculation of the compensation for deprivation of support, the provisions of the TCO within the scope of tort will be applicable. On the other hand, the mother and father who are the beneficiaries of the insured who died as a result of an occupational accident or occupational disease or while receiving permanent incapacity income are entitled to death income if they meet the conditions specified in the law. According to the GGACCUJ, the granting of death income to parents is a reflection of the right to social security and stems entirely from the social security legislation. Therefore, the source legislation and characteristics of the death income to be paid to the parents and the compensation for deprivation of support differ. In this context, the fact that the parents are not entitled to death income will not prevent the claim for compensation for deprivation of support.
However, the payment of death income to the parents will be taken into account in the calculation of the compensation for deprivation of support. The payments made to the parents by the Social Security Institution and the portion of the income that can be recourse by the Institution will be deducted from the compensation for deprivation of support.”
With this statement, the difference of opinion between the 21st Civil Chamber of the Court of Cassation and the other Chambers of the Court of Cassation has been put to an end. This is because the 21st Civil Chamber of the Court of Cassation has sought the conditions of entitlement to death pension within the scope of Law No. 5510 for the existence of damage in the compensation for deprivation of support in terms of the deceased worker’s mother and father. However, the other chambers argued that the mother and father benefited from the support of their child in any case as a presumption without the existence of a condition in this regard.
Another issue clarified in the GCACCUJ is that it is accepted as a de facto presumption that the child supports the parents in claims for compensation for deprivation of support. As a matter of fact, as explained in the Decision, it is seen from the provisions of the Turkish Civil Code regarding family law that the child will support the parents. Moreover, general life experiences also indicate that the child will support his/her parents continuously and regularly under all circumstances and at a certain level while alive or in the future. The fact that the parents have an income and that the child does not need cash care does not mean that the child’s death does not make life difficult for the parents at the social level they are at. In this respect, it has been accepted as a presumption by the Grand General Assembly of the Court of Cassation Unification of Jurisprudence that every parent will be deprived of support upon the death of his/her child.
Finally, the courts in charge of the Compensation for Deprivation of Support arising from Work Accidents are the labor courts and the competent courts are the labor courts in the place where the accident occurred or where the employer’s headquarters is located.
