Pain and Suffering Damages After a Traffic Accident

Traffic accidents are one of the most common types of tort encountered in Turkiye. Although most pecuniary losses are covered by compulsory traffic insurance, the pain, grief and violations of personal rights caused by an accident create a category of harm that cannot be measured in money; this harm is remedied through the institution of pain and suffering damages.

Pain and suffering claims raise many points of detail in practice: how much to claim, whether the insurance company can be a party to the action, in which court and within what period the action must be filed, and how the limitation period takes shape when a criminal case is opened. In this article we answer these questions systematically within the framework of the legislation and the case law of the Court of Cassation.

The History and Definition of Pain and Suffering Damages

The origins of pain and suffering damages reach back to the actio iniuriarum of Roman law; the idea that attacks on personality should be compensated beyond any material loss has been an important cornerstone in the shaping of modern law of obligations. In Turkish law, Article 47 of the repealed Code of Obligations of 1926 regulated the matter systematically; Article 56 of the Turkish Code of Obligations No. 6098 (TCO), which entered into force in 2012, preserved the definition while granting the judge a wider margin of discretion.

Pain and suffering damages - non-pecuniary (moral) damages - are a legal institution aimed at the at least partial relief of the pain, grief and sorrow felt as a result of unlawful acts such as the violation of bodily integrity, an attack on personal rights, or the death of a relative. Unlike pecuniary damages, they are directed not at a measurable loss but directly at the injury caused to a person's non-material existence. For this reason the basis is not an objective calculation formula but the judge's discretion in the specific case.

In the context of traffic accidents, pain and suffering damages arise in cases of bodily injury, permanent loss of earning capacity, aesthetic impairment or the death of a relative. They may be claimed by the injured person themselves and, in the event of death, those deprived of support and close relatives may also independently claim pain and suffering damages.

Factors That Determine the Amount of Damages

Article 56 TCO grants the judge a wide discretion in setting the amount of pain and suffering damages. This discretion is not arbitrary, however; there are objective criteria shaped by the case law of the Court of Cassation. The principal factors taken into account in practice when setting the amount are as follows:

Degree of fault

The rate of fault of the driver, the operator or the vehicle owner is directly reflected in the amount of damages. There is a significant difference between the damages claimed against a wholly at-fault driver and those claimed against a driver who is 50% at fault. Contributory fault (the injured party's own fault) is also a ground for reduction.

Nature and duration of the injury

The period of temporary incapacity, the rate of permanent loss of earning capacity, any mark or aesthetic impairment left on the body, the duration of treatment and the effects on subsequent quality of life are the basic determinants of the amount. The Court of Cassation consistently stresses that no linear link can be drawn between the disability rate and pain and suffering damages, but that severe disability will require higher pain and suffering damages.

Economic and social situation of the parties

The injured party's age, occupation, level of education and social environment, and the wrongdoer's income level and ability to pay, are taken into account in the judge's assessment. The aim here is to satisfy the injured party without unjustly enriching the wrongdoer.

Manner of the event and ancillary factors

The way the accident occurred and aggravating factors such as whether the driver was under the influence of alcohol, speeding, or running a red light are concrete factors that increase the amount of pain and suffering damages. The Court of Cassation takes the view that, in cases of drink-driving and negligence bordering on intent, the standard amounts of damages should be exceeded.

Are Pain and Suffering Damages Within the Scope of an Insurance Policy?

The answer to this question depends on which type of insurance is meant.

Compulsory Motor Third-Party Liability insurance (MTPL)

Under the relevant provisions of the Road Traffic Law (KTK) and the General Conditions of Compulsory Motor Third-Party Liability Insurance, MTPL covers only pecuniary losses. The settled case law of the Court of Cassation accepts that pain and suffering damages fall outside the scope of MTPL. Accordingly, a person harmed in an accident cannot apply to the insurance company to claim pain and suffering damages; this claim can be directed only against the driver, the operator or the vehicle owner.

The reasoning for this limitation is as follows: the purpose of MTPL is the rapid compensation of the losses arising in the assets of a third party harmed in an accident. Non-material harm, being a violation of the values of personality and impossible to determine in monetary terms in advance, has been left outside the insurer's obligation.

Voluntary Financial Liability insurance (voluntary liability cover)

Drivers or operators may take out voluntary financial liability insurance in addition to MTPL. The scope of this insurance depends entirely on the text of the policy. If it is expressly provided for in the policy, pain and suffering damages are also accepted within the cover of this insurance. Otherwise, voluntary insurance too is limited to pecuniary loss only.

Practical consequence

The first step for a party claiming pain and suffering damages because of a traffic accident is to check whether there is a voluntary insurance policy for the vehicle involved in the accident and whether pain and suffering cover is included. In most cases, because only MTPL exists, the claim for pain and suffering damages is directed not at the insurance company but directly at those who caused the accident.

Standing as Defendant: Should the Insurance Company Be Included?

Identifying the correct defendant in a pain and suffering claim is critically important to keep the action from being delayed. An objection to standing is a frequently encountered line of defense, and an action brought against the wrong defendant is dismissed on the merits.

The driver

This is the person who carried out the act that caused the accident. Where fault is present, they are the first addressee of pain and suffering damages.

The operator

Under Article 85 of the KTK, the concept of operator means the person who uses the vehicle on their own behalf and account; this is usually the vehicle owner, but not always. Where a rental vehicle is involved, the lessee; where there is a leasing agreement, the lessee under the leasing; and in a commercial enterprise, the enterprise owner may carry the status of operator. The operator has strict liability; they are also liable for the fault of their driver.

The vehicle owner

The vehicle owner is liable where the status of owner coincides with that of operator. Where the owner and the operator are different persons, both may be held jointly and severally liable.

The insurance company (MTPL)

As explained above, because MTPL does not cover pain and suffering damages, the insurance company is not the correct defendant in a pain and suffering claim. A claim for pain and suffering damages directed against the insurance company is dismissed on grounds of standing.

If pecuniary and pain and suffering damages are claimed together in the same action: the insurance company may be named as a defendant for the pecuniary damages; for the pain and suffering damages, only the driver, the operator and the vehicle owner are defendants. The Court of Cassation considers it necessary that this practice be applied consistently.

Competent Court and Court with Jurisdiction over the Subject Matter

Court with jurisdiction over the subject matter

Damages claims arising from a traffic accident are, as a rule, heard before the civil court of first instance. The jurisdiction of the commercial court of first instance comes into play where both parties are merchants and the dispute is of a commercial nature; however, because damages claims arising from tort are as a rule not regarded as commercial matters, this exception is rarely applied.

Competent court

The relevant venue provision of the Road Traffic Law offers the injured party more than one competent-court option:

• The court of the place where the accident occurred
• The court of the injured party's domicile
• The court of the defendant's domicile
• The court of the place where the insurer's headquarters or branch is located (if the insurance company is a defendant)

This multiple-venue rule is a convenience arranged in the injured party's favour. In practice, most claimants prefer the court of their own domicile.

Limitation: The Relationship Between the TCO and the Criminal Limitation Period

In pain and suffering claims, limitation is one of the most critical matters, in terms of both protecting the right to claim and its potential to cause loss of rights.

General limitation (Article 72 TCO)

For damages claims arising from tort, Article 72 TCO sets a twofold limitation period:

• Subjective limitation: two years from learning of the harm and the wrongdoer
• Absolute limitation: ten years from the date of the event in any case

The right to bring an action lapses when whichever of these two periods expires first.

Application of the criminal limitation period (Article 72/2 TCO)

A critical special rule comes into play here: if the act also constitutes a crime, then where criminal law provides a longer limitation period, the criminal limitation period applies. Because traffic accidents in the great majority of cases constitute the offence of negligent injury or negligent homicide, this provision is decisive in most cases.

Negligent injury (TPC art. 89): The penalty is imprisonment from 3 months to 1 year in its basic form, and from 1 to 3 years where there is conscious negligence or more than one victim. The applicable criminal limitation period under Article 66 of the Turkish Penal Code (TPC) is 8 years.

Negligent homicide (TPC art. 85): The penalty is imprisonment from 2 to 6 years in its basic form; and from 2 to 15 years where there is conscious negligence or more than one victim. The applicable criminal limitation period is 15 years.

Accordingly, a pain and suffering claim for an injury accident may be filed within 8 years of the accident date, and for a fatal accident within 15 years.

The effect of the criminal case

The fact that a criminal case has been opened does not interrupt the limitation period, but neither is the opening of a criminal case a condition for the criminal limitation period to apply. What matters is that the act objectively constitutes a crime.

On the other hand, the criminal court's final findings on fault bind the civil court under Article 214 of the Code of Civil Procedure (HMK). For this reason, having fault correctly established in the criminal file is also critically important for the damages case.

Frequently Asked Questions

Conclusion

Damages claims for pain and suffering arising from a traffic accident require care in both their legal framework and their procedural detail. Identifying the correct defendant, analysing the scope of the insurance policy, correctly determining the applicable limitation period and making a claim for an amount supported by precedent decisions are all factors that directly affect the course of the case.

Many injured parties give up their rights on the basis of mistaken assessments such as "the two years have passed" or "insurance does not cover pain and suffering anyway." Yet the long criminal limitation periods and the scope of voluntary insurance policies still leave an effective legal route in most cases.

You may contact us to assess your damages claim arising from a traffic accident and for a preliminary review of your file.