Strict Liability for Hazardous Activities under Turkish Law

From the Fault Principle to Strict Liability

Ever since law entered human life, it has continued on the basis of the principle “no fault, no liability” . Over time, however, with the development of law, this view was gradually abandoned and cases of strict liability also came to be recognised. Both the Code of Obligations No. 818 (CO) and the Turkish Code of Obligations No. 6098 (TCO) were drafted along these lines. Within this framework, liability in tort, which is the general rule, has been based on the fault of the perpetrator and the unlawfulness of the act; in addition, both the provisions of the Code of Obligations and other relevant statutes regulate situations in which liability may arise irrespective of fault. Strict liability appears in two forms, namely “causal liability” and “objective liability” (these being its two forms).

In essence, this is a natural consequence of the necessary conditions of social life, which today must be carried on through mutual assistance and solidarity among individuals. For social and economic reasons, there are cases in which those who use, operate or benefit from hazardous facilities, vehicles, businesses and other objects are held liable for damage that such things cause or may cause by reason of their nature and structure, even where they are not at fault and have exercised every care and diligence to prevent the hazard that has materialised.[1]

Obligations arising from tort are regulated in the second subdivision of the first chapter of the general provisions in Part One of the Turkish Code of Obligations No. 6098. In this chapter, obligations arising from tort are examined under four side headings, and strict liability is regulated under the second side heading. Thus, strict liability, which was also regulated in the Code of Obligations No. 818, has acquired a side heading of its own and has taken its full place in the structure of the Code.

Strict liability is grouped under three main headings: equitable liability, liability for failure to exercise due care, and hazard liability. Hazard liability, which forms the core of our study, is regulated in Article 71 of the TCO under the side heading “Hazard Liability and Compensation” . The relevant provision reads: “Where damage arises from the activity of a business posing a significant hazard, the owner of the business and, if any, the operator shall be jointly and severally liable for that damage.

Where, having regard to the nature of a business or the materials, instruments or forces used in its activity, it is concluded that the business is liable to cause frequent or serious damage even if all the care expected of a person specialised in such work is exercised, it shall be deemed to be a business posing a significant hazard. In particular, where any statute provides for special hazard liability for businesses posing similar hazards, that business shall also be deemed to be a business posing a significant hazard.

Special liability provisions laid down for a specific hazard shall remain reserved.

Even where such activity of a business posing a significant hazard has been permitted by the legal order, the injured parties may request that the damage caused by the activity of that business be compensated by an appropriate sum.” The provision is thus set out in four paragraphs.

The article discusses the cases of strict liability under the following three main headings:

• Equity-based liability
• Liability based on a duty of care
• Hazard liability

In order to assess and examine the provision fully, the general principles of liability in Turkish law will first be addressed and strict liability will be discussed. Hazard liability will then be examined in depth and assessed with reference to the four paragraphs of the article.

Anahtar kelimeler

• Hazard liability
• Strict liability based on hazard
• Kusursuz sorumluluk
• Compensation for sacrifice
• Business activity posing a significant hazard
• Turkish Code of Obligations

Genel Olarak Sorumluluk

The body of rules that indicates who is to be held liable for the damage incurred and, accordingly, regulates the injured party’s right to claim compensation for the damage from the person who caused it is referred to as sorumluluk in legal terminology.[2]

In the law of obligations, civil liability is divided into two: “fault-based liability”, “strict liability” . As in other legal systems, the general rule in our law for liability to arise is that the person or persons causing the damage are at fault. Indeed, under Article 49 of the TCO the element of “fault” is listed as an essential condition for a tort to arise, and it is stated that the principal form of liability is fault-based liability.[3]

For fault-based liability to arise, the elements of an event giving rise to liability, damage and a causal link must be present together. In this type of liability, different standards and justifications apply depending on the specific case. Naturally, fault is not always required for liability arising from damage. Cases in which fault is not required are referred to in legal doctrine and scholarship as objective liability. With developing technology, the fault principle has lost its meaning in certain areas of our social and economic life. For this reason, the view has been adopted that, by way of exception, a person should be held liable in certain cases prescribed by law where damage results from their act even if they are not at fault. The legislature has therefore sought to hold certain persons liable by reason of certain acts or things they own. As in most legal systems, an exception has been made to fault-based liability, and in certain cases the injured person or persons have been given the possibility of placing liability for the damage suffered on the other party within the specific situations regulated.[4]

Strict Liability and the Notion of Hazard

The framework of fault-based liability put forward by individualist-liberal legal and economic orders continues to narrow day by day. In our age, industrial and commercial activities, travel by ship, aircraft, railway and motor vehicle, the growing importance of machinery, and economic causes and events give rise to accidents. Strict liability has been regulated in order to redress the harm suffered by the injured party as a result of accidents and to protect the injured person. The main reason given for this is that, in such events, fault-based liability cannot fully cover the damage and proving fault is very difficult.[5]

Damage arising from hazardous activities generally occurs independently of human will and action; such damage depends on the nature of things and the power of machines, and the hazards arising from the use of such things must be borne by the person who uses them or benefits from them.[6]

Under hazard liability, which is based on social considerations, those who benefit from conduct and activities that create certain hazards in their surroundings, or who carry on such activities within their own sphere of control, should be liable even where it is not possible to prevent or avoid their consequences. It is of no importance whether the damage in question results from the activity of the person responsible for the hazard or of another person, from the mechanical effect of a technical event or from a natural event. What matters in hazard liability is that the person or persons who, by operation of law, must bear the consequences of the hazard giving rise to liability are under an obligation to redress the damage.[7]

Hazard Liability in Comparative Law

Hazard liability is regulated by special statutes in Switzerland, Germany and Austria. In Dutch, Belgian, French and Italian law, by contrast, it is regulated as a general rule, as is fault-based liability. In the United States and England, discretion is left to the judge, and strict liability may be applied depending on the particular features of the specific case.[8]

How hazard-based liability is regulated in different legal systems

In French Law

Hazard liability in the French Civil Code is found in Article 1384. Hazard liability, regulated in general terms, is applied to many cases of strict liability. In French law, fault in cases of gross negligence is referred to as aggravated fault. In cases of aggravated fault arising from gross negligence, the damage must cause significant harm to the interests of the injured party. Where aggravated fault is established, which frequently appears in national court decisions, the injured party’s minor contribution to causing the damage has no significance. In French law, liability arising from special activities affecting the environment, the liability of the operator of a motor vehicle and liability in the field of nuclear energy are recognised as hazard liability. Under the French road traffic legislation, a person injured in a traffic accident may claim compensation for the damage suffered. However, the rate of compensation may vary depending on the particular features of the specific case.[9] As regards activities in the nuclear field, it has been stated that the State and the relevant operator must take the necessary measures against radioactive substances, carry out the controls necessary to protect public health, and take measures to prevent the consequences of accidents should an accident occur at a nuclear power plant.[10] As regards the environment, in assessing the seriousness of the hazard, the characteristics of nature are taken as the basis where hazards arise that adversely affect or threaten human health.[11]

In Swiss Law

In Swiss law, the following are regulated: the liability of the operator of an aircraft, liability arising from special activities affecting the environment, the liability of the carrier of nuclear material and of the operator of a nuclear plant[12], the liability of the operator of a motor vehicle[13]and the liability of the manufacturer for its products.[14]

Avusturya Hukukunda

In Austrian law, hazard liability, regulated by special statutory provisions, has been addressed in two forms under the new draft: high hazard and increased hazard. Increased hazard is placed between hazard and fault. It concerns activities that are assessed separately according to the particular features of the specific case and do not reach the level of a hazard. In cases of increased hazard, the person to whom liability is attributed may be released from liability by proving that they exercised the necessary care and diligence incumbent upon them. The liability of an animal keeper, buildings, riding a bicycle at high speed or skiing are assessed within these cases. High hazard, on the other hand, arises where frequent and serious damage is likely to occur even if the duty of care and diligence has been fully discharged. Operations arising from activities such as oil, electricity, nuclear power plants, gas, dams, trains, aircraft, cable cars, cars and dynamite blasting are termed high hazard. In these cases, it has been stated that hazard liability will apply. In the case of high hazard, the person liable is the operator. However, the operator’s liability will cease where the damage was caused by the injured party, where the injured party consented, or in the event of force majeure.[15]

Hazard Liability in Turkish Law

There are two forms of hazard liability that are the most frequently encountered and widespread in Turkish law.

The first of these is the provision of Article 28 of the Environmental Law No. 2872[16](EL), which reads: “Those who pollute or damage the environment shall be liable, without the requirement of fault, for damage arising from the pollution and degradation they cause.

The polluter’s liability for compensation under the general provisions for the damage that has occurred is reserved.

Claims for compensation for damage caused to the environment shall be time-barred five years from the date on which the injured party learns of the damage and of the person liable to pay compensation.” By this provision, a form of strict liability has been established.

The second important case is found in Article 85 of the Highway Traffic Law No. 2918[17](HTL), which provides: “Where the operation of a motor vehicle causes the death or injury of a person or damage to property, and the motor vehicle is operated under the trade name or business name of an enterprise or with tickets issued by that enterprise, the operator of the motor vehicle and the owner of the enterprise to which it belongs shall be jointly and severally liable for the resulting damage.” This provision establishes the strict liability of the operator of a motor vehicle. Apart from the cases of strict liability under the EL and the HTL, the National Defence Obligation Law, which regulates the liability of the State for damage arising from military firing and manoeuvres[18], and the Turkish Petroleum Law, which regulates the liability of the holder of petroleum rights for damage arising from petroleum exploration or processing activities[19](TPL), also provide for strict liability based on the hazard principle.[20] In addition, Turkish law includes the Turkish Civil Aviation Law No. 2920 (TCAL), which specifically regulates compensation for damage caused by aircraft to third parties. Article 134 of that Law regulates non-contractual liability “The operator of a civil aircraft shall be liable for damage caused by the civil aircraft to third parties.” as a form of strict liability.[21]

“The operator of a civil aircraft is liable for damage caused by the civil aircraft to third parties.”

Turkish Civil Aviation Law No. 2920, Art. 134

Strict liability cases in the special laws mentioned in the article

The Code of Obligations No. 818 regulated forms of strict liability based on the principles of due care and equity. However, it did not regulate hazard liability. Strict liability based on hazard, which had been specifically regulated only in special statutes such as the Environmental Law, the Highway Traffic Law, the Turkish Petroleum Law and the Turkish Civil Aviation Law, has been regulated in Article 71 of the Turkish Code of Obligations No. 6098 as a general form of strict liability based on hazard.[22]

TCO Art. 71: Nature, Scope of Application and Conditions

Nature and Scope of Application of Article 71 of the Turkish Code of Obligations

The legislature may, intentionally and knowingly, regulate the same legal institution in more than one statute. Where one of these statutes is general and the other special in nature, rules exist as to which statute is to be applied. Where an earlier general statute and a later special statute coexist, it is clear that the special statute will apply. However, the supplementary role of the provisions of the general statute in filling gaps in the special statute must not be forgotten. On the other hand, where the special statute is earlier and the general statute later, the question to be examined is whether the legislature, in enacting the later general statute, sought to set aside the provisions of the earlier special statute.[23]

Article 71 of the Turkish Code of Obligations regulates hazard liability as a general provision. Its scope of application must therefore first be determined vis-à-vis the provisions of other special statutes. Two situations may accordingly arise. First, where a special statute on hazard liability is enacted after Article 71 TCO, which is a general provision, the later special statute will apply. It may nevertheless be said that Article 71 TCO, being general in nature, will also apply alongside the special statute in order to supplement it and provide more detailed protection. Second, there are special statutes that were in force before Law No. 6098. This situation has been clarified in paragraph 3 of Article 71 TCO. Accordingly, “Special liability provisions laid down for a specific hazard shall remain reserved.” By this provision, it is stated that the rules laid down in special statutes for specific hazards are reserved. It may therefore be said that, with regard to special statutory provisions on hazard liability that were in force before Article 71 TCO, those special provisions will apply.[24]

“Special liability provisions laid down for a specific hazard shall remain reserved.”

Turkish Code of Obligations, Art. 71/3

Conditions of Hazard Liability: In General

The article examines the conditions of hazard liability under Article 71 of the TCO under the following headings:

1. The damage must result from the activity of an enterprise
2. The enterprise must be of a nature that poses a significant hazard
3. Limitation of the damage resulting from the activity of an enterprise posing a significant hazard
4. Holding the owner or operator of the enterprise liable for damage arising from the enterprise’s activity

In Article 71 of the Turkish Code of Obligations No. 6098, strict liability based on hazard has been regulated in general terms, albeit long after the legal orders of other countries. Paragraph 1 of Article 71, by providing that “Where damage arises from the activity of a business posing a significant hazard, the owner of the business and, if any, the operator shall be jointly and severally liable for that damage.” , establishes a general form of strict liability based on hazard. In paragraph 3 of the article, by contrast, “Special liability provisions laid down for a specific hazard shall remain reserved.” the provision states that the article regulates hazard liability in general terms and that, where hazard liability is regulated in special statutes, the provisions of those special statutes will apply. The legislature noted that the special forms of liability regulated in special statutes were inadequate in many respects. It was recognised that, where there is a hazardous activity and damage occurs as a result of it, the actual damage could not be redressed merely because the conditions required for special hazard liability under the special statutory provisions had been met, and a general provision on hazard liability was therefore introduced.[25]

In its report on the Draft Turkish Code of Obligations, the Justice Committee of the Grand National Assembly of Turkey made the following findings concerning strict liability based on hazard:

Whereas Swiss law, which is the source of our Code of Obligations, contains many special laws providing for hazard liability, in view of the absence of sufficient statutory provisions on this matter in our law, it was considered appropriate for the article in question to set out the general principle of hazard liability.

According to the principle set out in the first paragraph of the article: “Where damage arises from the activity of a business posing a significant hazard, the owner of the business and, if any, the operator shall be jointly and severally liable for that damage.” Accordingly, persons carrying on the activities of a business posing a significant hazard cannot escape liability for the typical damage caused by the typical hazard, even if they have obtained the permit or licence required for those activities.

The first sentence of the second paragraph of the article regulates the circumstances and conditions under which a business will be considered to “pose a significant hazard”. Accordingly: “Where, having regard to the nature of a business or the materials, instruments or forces used in its activity, it is concluded that the business is liable to cause frequent or serious damage even if all the care expected of a person specialised in such work is exercised, it shall be deemed to be a business posing a significant hazard.” Under this provision, where a business posing a significant hazard is liable, as a result of unforeseen circumstances, to cause damage frequently or occasionally serious damage, the provision of the first paragraph of the article may be applied to the persons operating that business. The last sentence of the same paragraph further states that, in particular, where any statute provides for special hazard liability for businesses posing similar hazards, that business will also be deemed to be a business posing a significant hazard.

The third paragraph of the article states that special statutory provisions providing for hazard liability are reserved.

The final paragraph of the article provides that, even where the activity of a business posing a significant hazard has been permitted by the legal order, the injured parties may request that the damage arising from the activity of that business be compensated by an appropriate sum.”[26]

Turkish Grand National Assembly Justice Committee, report on the Draft Turkish Code of Obligations

The activities of enterprises engaged in mining exploration, nuclear power plants, natural gas production and distribution, and oil exploration and production result in a great deal of damage that is usually irreparable. These activities are referred to as ‘activities posing a significant hazard’. If the general rule of fault-based liability were applied to enterprises engaged in such activities, there could be no question of fair protection. For this reason, it was considered appropriate to adopt strict liability for damage arising from the activities of enterprises posing a significant hazard.

On careful assessment of the fourth paragraph of Article 71 TCO, the conditions and limits of the hazard liability regulated therein are not entirely clear. Because the matter is addressed in an open-ended manner by reference to hazardous businesses subject to permission and hazardous businesses operating without permission, it appears that, where liability is subjected to compensation by an appropriate sum, some of the injured party’s losses will not be covered. The fact that a statute or any competent authority has permitted a business will result in certain losses of the injured parties not being covered where damage arises from the activity of the permitted business, and it is not right that this burden should be placed on the injured party.[28]

Business Activity Posing a Significant Hazard

The Damage Must Result from the Activity of an Enterprise

In the text of the Draft Turkish Code of Obligations concerning hazard liability, the term “activity” was used; following criticism, it was more accurately expressed as “business activity”. By changing “activity” to “business activity”, the legislature removed, at least to some extent, the uncertainty surrounding the scope of the provision. However, it has been argued in legal scholarship that, for strict liability based on hazard to achieve its true purpose, it would be appropriate for the provision to cover every kind of hazardous “business, facility or activity” posing a significant hazard.[29]

By interpreting the term “business” and “activity” used in the wording of the Code, “business activity” it will be possible to understand which phenomena fall within the scope of the legal term so framed. Although the word “business” may evoke a commercial meaning, since the legislature did not expressly refer to a “commercial enterprise” , no commercial character will be required of the business. In this context, an activity comprises more than one act directed towards a goal. A business, on the other hand, is a structure organised towards a purpose, and this structure is a set of elements operating independently and continuously and generating an economic benefit.[30]

The Enterprise Must Be of a Nature That Poses a Significant Hazard

Paragraph 2 of Article 71 of the Turkish Code of Obligations No. 6098 addresses the nature of the hazard: “Where, having regard to the nature of a business or the materials, instruments or forces used in its activity, it is concluded that the business is liable to cause frequent or serious damage even if all the care expected of a person specialised in such work is exercised, it shall be deemed to be a business posing a significant hazard. In particular, where any statute provides for special hazard liability for businesses posing similar hazards, that business shall also be deemed to be a business posing a significant hazard.” The fact that a business’s activities pose a significant hazard at certain times will not always lead to their being regarded as hazardous activities. It appears possible that an activity which is currently hazardous may, over time, become non-hazardous through technological developments.[32] In essence, however, the term hazard denotes something that may ultimately give rise to danger and, as a result, generally cause accidents that cannot be prevented. The hazard in strict liability based on hazard, by contrast, is one that arises rarely, or, even if it arises frequently, causes damage that is considerable in quantity and quality.[33]

Article 71 TCO does not include every kind of activity within hazard liability. Strict liability based on hazard has been regulated only for activities posing a significant hazard. As is clear from the wording of the article, for hazard liability to arise the business’s activities must have two characteristics: first, the business’s activity must pose a hazard; second, that hazard must be significant. Both conditions must be met together in the specific case. If the business activity does not pose a hazard, the question whether the hazard is significant will be meaningless.[34] These two conditions must be assessed in light of each specific case.[35]

The abstract nature of the term “significant hazard” used in the relevant article of the Code must also have drawn the legislature’s attention, since it attempted to make this concept more concrete. Two criteria may be identified here:

• Being liable to cause frequent and serious damage despite the exercise of great care
• The existence of special hazard liability for similar hazards

In the second paragraph of Article 71 TCO “Where, having regard to the nature of a business or the materials, instruments or forces used in its activity, it is concluded that the business is liable to cause frequent or serious damage even if all the care expected of a person specialised in such work is exercised, it shall be deemed to be a business posing a significant hazard.” , it will be examined whether, in the field in which the business operates, damage would occur despite all the skill and effort of an expert exercising the utmost care to prevent it. If damage occurs even in that case, a significant hazard of damage will be deemed to exist. Secondly, the continuation of the same article provides: “In particular, where any statute provides for special hazard liability for businesses posing similar hazards, that business shall also be deemed to be a business posing a significant hazard.” Accordingly, where special hazard liability has been regulated, and there is a hazardous business activity similar to the one so regulated, that business activity will also be accepted as an “activity posing a significant hazard” , and Article 71 TCO may be applied.[36]

Limits of Damage Arising from Hazardous Business Activity

Although paragraph 1 of Article 71 of the Turkish Code of Obligations provides that the operator or owner of a business posing a significant hazard will be liable for damage arising from the activity of that business, the limits of the damage arising from such activity have not been clearly regulated. The limits of damage arising from such business activities need to be clearly defined. The legislative reasoning of the provision states that liability will arise for “…the typical damage caused by the typical hazard…”. It would be correct to understand the extent of the damage for which the operator or owner of a business posing a significant hazard is held liable under the relevant article as damage arising from the non-atypical risks of the hazardous activity. Otherwise, the materialisation of atypical risks of the activities of businesses posing a significant hazard would also be assessed under this provision. However, the legislature had no such intention when enacting the article. Strict liability is the exception; fault-based liability is the rule. Greater care and attention is therefore required on this matter. In cases of liability for damage arising from the activities of businesses posing a significant hazard, importance must be attached to clearly defining the conditions of liability and the limits of those conditions.[37]

The Liable Person and Exoneration from Liability

Holding the Owner or Operator of the Enterprise Liable for Damage Arising from the Enterprise’s Activity

The first paragraph of Article 71 of the Turkish Code of Obligations No. 6098, “Where damage arises from the activity of a business posing a significant hazard, the owner of the business and, if any, the operator shall be jointly and severally liable for that damage.” by so providing, regulates who is to be liable for damage arising from the activity of a business posing a significant hazard. Accordingly, the operator of a business run by a public or private legal person or by a natural person, or the person operating the hazardous business in their own name and for their own account, will be jointly and severally liable. [38]

With regard to damage arising from the activities of businesses posing a significant hazard, the operator can be released from liability only by proving the existence of causes that break the chain of causation. For this reason, in order to be released from liability, the operator must prove the gross fault of a third party, the gross fault of the injured party or force majeure.[39]

In a decision rendered by the 21st Civil Chamber of the Court of Cassation,[40] it was held that force majeure breaks the chain of causation. In hazard liability, however, the gross fault of a third party is not capable of breaking the chain of causation. This is because, for hazard liability to arise, the damage must result from the typical hazard and the business activity must pose a significant hazard. The gross fault of a third party will therefore never be capable of breaking the chain of causation.[41]

Hazard Liability and Compensation Balancing (TCO 71/I, 71/IV)

Strict liability based on hazard is regulated in the second subdivision of Part One of the Turkish Code of Obligations under the heading “hazard liability and compensation” . Its consequences are addressed differently in the first and fourth paragraphs of Article 71 TCO. The first paragraph of the article provides that those injured by damage arising from the activities of businesses posing a significant hazard may hold the operator or owner of the business that caused the damage liable. The fourth paragraph provides that, even where the damaging activities of a business posing a significant hazard have been permitted by the legal order, the injured persons may request that their damage be compensated by an appropriate sum.[42]

The interferences involved in compensation for sacrifice and the damaging factors inherent in hazard liability differ in nature. In liability based on compensation for sacrifice, there are damaging interferences whose existence is permitted by the legal order. In liability based on hazard, by contrast, there is a high probability of damage according to ordinary experience of life. Because of these differences, where hazard-creating factors are present, it is known that they may cause damage; however, it is not possible to know how and when that damage may occur. In liability based on compensation for sacrifice, on the other hand, the interferences of the holder of the overriding interest are carried out intentionally and knowingly, and the damage that the permitted interferences will cause can be foreseen in advance.[43]

When specific cases arise in daily life, determining whether liability based on hazard or liability based on compensation for sacrifice will apply is very complex. The point to be considered here, however, concerns whether the person injured by an interference or act had any means of defence against that damage. In other words, in hazard liability, the injured person faced with the interference or act causing the damage must have had no means of defence against the operation or conduct of the activity that is the source of the hazard. Here, the legal order has not deprived the injured person of the possibility of defending themselves against the damage; it is simply not possible in practice for the injured person to do so. In liability based on compensation for sacrifice, by contrast, the legal order deprives the injured person of the possibility of defending themselves against the act or interference causing the damage.[44]

Outcome

Today, as a result of the rapid development of technology, economically weaker injured parties are not expected to bear the consequences of that development. On the contrary, those who carry on hazardous activities and benefit from them should fully cover the damage they cause. Indeed, those who suffer damage as a result of the use of technology in every sphere are the weaker parties. Therefore, even if they have not contributed to the damage through fault, those who benefit from hazardous activities should cover such damage. Moreover, this is the view consistent with social considerations. It is for these reasons that law, which is constantly evolving, has developed strict liability based on hazard.

Hazard liability is the most onerous form of liability in our law. If this liability is not regulated in general terms, many problems arise. Where hazard liability is regulated only through special statutes, serious injustice results, since the question of compensation arises whenever damage occurs in situations not covered by those statutes. General hazard liability, introduced into our law, albeit belatedly, by the Turkish Code of Obligations No. 6098, has put an end to such injustice.

Since hazard liability is the most onerous form of strict liability, recourse to it should be had only in exceptional cases. For this liability to arise, damage must result from the non-atypical hazard of the activity of a business posing a significant hazard in the course of that activity. Release from this liability is possible only where the chain of causation is broken.

Article 71 TCO regulates not only hazard liability but also liability based on the principle of compensation for sacrifice. In specific cases, however, confusion arises as to whether hazard liability or liability based on compensation for sacrifice is to be applied. This depends on whether the legal order has deprived the injured party of the ability to defend themselves.

Bibliography and Footnotes

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• ULUSAN, İlhan; Tehlike Sorumluluğu Üstüne, Mukayeseli Hukuk Araştırmaları Dergisi, 1970, No. 6, p. 23
• ÜÇIŞIK, Güzin; Tehlike Sorumluluğunun Genel Kural İle Düzenlenmesi, Sorumluluk ve Tazminat Hukuku Sempozyumu, 2009, p. 131
• YILMAZ, Süleyman; Türk Borçlar Kanunu Tasarısında Sebep Sorumluluklarına İlişkin Yeni Hükümler, Ankara Üniversitesi Hukuk Fakültesi Dergisi, No. 59, 2010, p. 572

Dipnotlar

[1] ULUSAN, İlhan; Tehlike Sorumluluğu Üstüne, Mukayeseli Hukuk Araştırmaları Dergisi, 1970, No. 6, p. 23

[2] KILIÇOĞLU, Ahmet M.; Sorumluluk Hukuku, Sözleşme Dışı Sorumluluk, Vol. 1, Ankara, 2002, p. 2

[3] KILIÇOĞLU, Ahmet M.; Borçlar Hukuku Genel Hükümler, Turhan Kitabevi, 7th ed., Ankara, 2006, p. 222

[4] REİSSOĞLU, Safa; Borçlar Hukuku Genel Hükümler, Beta Yayınları, Istanbul, 2006, p. 155

[5] KARAHASAN, Mustafa Reşit; Sorumluluk Hukuku, Beta Basım, Istanbul, 1995, pp. 455-466

[6] İMRE, Zahit; Hukuki Mesuliyet Esası Üzerine Düşünceler, İÜHFM, 197/1981, p. 403

[7] KARAHASAN, Mustafa Reşit; Sorumluluk Hukuku, Beta Basım, Istanbul, 1995, p. 469. It is characterised as follows: “The mere existence of a causal link between an activity regarded as hazardous and the damage is not a sufficient distinguishing criterion of hazard liability. Elements such as the damage falling within the sphere of responsibility of the person concerned, that person’s control over the source of the hazard and the nature of the hazard are required… In this respect, liability for damaging events other than torts…”. For further details, see: KANETİ, Selim; Haksız Fiillerde Hukuka Aykırılık Unsuru, 1964, pp. 5-6

[8] ULUSAN, İlhan; Tehlike Sorumluluğu Üstüne, Mukayeseli Hukuk Araştırmaları Dergisi, 1970, No. 6, p. 40

[9] French road traffic legislation (Code rural), Art. L122-1

[10] French Law No. 2006-686 of 13 June 2006 on Nuclear Transparency and Security, Art. 1

[11] ÜÇIŞIK, Güzin; Tehlike Sorumluluğunun Genel Kural İle Düzenlenmesi, Sorumluluk ve Tazminat Hukuku Sempozyumu, 2009, p. 131

[12] The Swiss Nuclear Energy Liability Act entered into force on 18 March 1983. Under this Act, persons operating a nuclear power plant and persons transporting nuclear material are liable for the resulting damage. Under Article 3 of the Act, the operator’s liability is unlimited.

[13] Article 58 of the Swiss Road Traffic Act, which entered into force on 19 December 1958, regulates the liability of the operator of a motor vehicle. Under the relevant provision, where the operator is involved in a traffic accident resulting in the injury or death of a person, the operator is liable to compensate the damage.

[14] ÜÇIŞIK, Güzin; Tehlike Sorumluluğunun Genel Kural İle Düzenlenmesi, Sorumluluk ve Tazminat Hukuku Sempozyumu, 2009, p. 129

[15] Ibid., pp. 132-133

[16] Environmental Law No. 2872, adopted on 09/08/1983 and published on 11/08/1983

[17] Highway Traffic Law No. 2918, adopted on 13/10/1983 and published on 18/10/1983

[18] National Defence Obligation Law No. 3634, adopted on 07/06/1939 and published on 16/06/1939, Art. 62

[19] Turkish Petroleum Law No. 6491, adopted on 30/05/2013 and published on 11/06/2013, Art. 22

[20] KILIÇOĞLU, Ahmet M.; Borçlar Hukuku Genel Hükümler, Turhan Kitabevi, 16th ed., 2012, Ankara, p. 313

[21] İŞGÜZAR, Hasan; Türk Sorumluluk Hukukuna Göre, Sivil Hava Aracı İşletenin Akit Dışı Sorumluluğu, Ankara, 1989, p. 19

[22] KILIÇOĞLU, Ahmet M.; Borçlar Hukuku Genel Hükümler, Turhan Kitabevi, 16th ed., 2012, Ankara, p. 360

[23] OĞUZMAN, Kemal; Medeni Hukuk, Istanbul, 2011, p. 82

[24] NOMER, Haluk; Borçlar Hukuku Genel Hükümler, 10th ed., Istanbul, 2011, p. 114

[25] KILIÇOĞLU, Ahmet M.; Borçlar Hukuku Genel Hükümler, Turhan Kitabevi, 16th ed., 2012, Ankara, p. 359

[26] For the legislative reasoning and text of the draft article, see TBKT, Ministry of Justice of the Republic of Türkiye, Ankara, 2008, Art. 70

[27] EREN, Fikret; Borçlar Hukuku Genel Hükümler, 10th ed., Istanbul, 2008, p. 458

[28] KILIÇOĞLU, Ahmet M.; Borçlar Hukuku Genel Hükümler, Turhan Kitabevi, 16th ed., 2012, Ankara, p. 360. To the same effect, KORKUSUZ, Refik; Hukukumuzda Tehlike Sorumluluğu Uygulaması ve Yeni Borçlar Kanunu Tasarısında Düzenlenmesi, Gazi Üniversitesi Hukuk Fakültesi Sorumluluk ve Tazminat Hukuku Sempozyumu, 2009, Ankara, p. 203. Compare KOÇHİSARLIOĞLU/ERİŞGİN, Yeni Türk Borçlar Kanunu Tasarısında Haksız Fiiller, Istanbul 2010, p. 1264

[29] ATAMER, Yeşim; Revize Edilmiş Türk Borçlar Kanunu Tasarısı’na İlişkin Değerlendirme ve Teklifler, Hukuki Perspektifler Dergisi, No. 6, 2006, p. 22

[30] ERİŞGİN, Nuri, Türk Borçlar Kanunu Madde 71: Genel Tehlike Sorumluluğu, Vedat Kitapçılık, Istanbul, 2013, p. 74

[31] GÜRSOY, Kemal Tahir; İşverenin Sorumluluğu, Ankara Üniversitesi Hukuk Fakültesi Dergisi, 1974, Vol. 31, No. 1-4, p. 196

[32] SANLI, Kerem Cem; Kusursuz Sorumluluk Halleri, Türk Borçlar Kanunu Sempozyumu, XII Levha, p. 79

[33] TANDOĞAN, Haluk; Kusura Dayanmayan Sözleşme Dışı Sorumluluk Hukuku, Ankara, 1981, p. 26

[34] The following example is given: “Where spare parts for firearms are manufactured in one factory, these parts are assembled into firearms in a second factory, and, before being placed on the market, the firearms are test-fired at another business and then packaged and delivered to distributors for sale, Article 71 CO may be applied on the basis that the activity of the business (factory) manufacturing the spare parts does not pose a hazard and the assembly work in the second factory does not pose a significant hazard. By contrast, since an activity posing a significant hazard is involved at the business where the firearms are test-fired, the strict liability under Article 71 CO may come into play.” See KILIÇOĞLU, Ahmet M.; Borçlar Hukuku Genel Hükümler, Turhan Kitabevi, 16th ed., 2012, Ankara, p. 362

[35] KILIÇOĞLU, Ahmet M.; Borçlar Hukuku Genel Hükümler, Turhan Kitabevi, 16th ed., 2012, Ankara, p. 362

[36] AKKAYAN YILDIRIM, İÜHFM, Vol. LXX, No. 1, 2012, p. 210

[37] AKKAYAN YILDIRIM, İÜHFM, Vol. LXX, No. 1, 2012, p. 211. To the same effect, see KILIÇOĞLU, Ahmet M.; Borçlar Hukuku Genel Hükümler, Turhan Kitabevi, 16th ed., 2012, Ankara, p. 360

[38] Ibid., p. 211

[39] ORAL, Tuğçe; TÜRK BORÇLAR KANUNU’NUN 71. MADDESİ ÇERÇEVESİNDE İŞVERENİN İŞ KAZASINDAN VE MESLEK HASTALIĞINDAN DOĞAN TEHLİKE SORUMLULUĞU, TAAD, No. 17, 2014, p. 291

[40] “Although judgment was rendered in the terms set out in writing on the ground that, following the work accident caused by the ‘Earthquake’ of 17.8.1999, the employer is to be held liable within the scope of ‘hazard liability’, this outcome is not consistent with the fundamental principles of the legal system or with the settled case law of the Court of Cassation.

…Hazard liability is not a liability for outcome either. Indeed, where the damage did not arise from a hazard specific to the business, that is, where it occurred as a result of another intervening cause, the employer should not be held liable for that damage…” Court of Cassation, 21st Civil Chamber, 3.10.2002, Docket No. 2002/7848, Decision No. 2002/8013.

[41] EREN, Fikret; Borçlar Hukuku ve İş Hukuku Açısından İşverenin İş Kazası Meslek Hastalığından Doğan Sorumluluğu, Ankara Üniversitesi Hukuk Fakültesi Yayınları, Ankara, 1974, p. 124

[42] YILMAZ, Süleyman; Türk Borçlar Kanunu Tasarısında Sebep Sorumluluklarına İlişkin Yeni Hükümler, Ankara Üniversitesi Hukuk Fakültesi Dergisi, No. 59, 2010, p. 572

[43] ULUSAN, İlhan; Medeni Hukukta Fedakârlığın Denkleştirilmesi İlkesi ve Uygulama Alanı, Istanbul, 1977, pp. 56-59

[44] İMRE, Zahit; Doktrinde ve Türk Hukukunda Kusursuz Mesuliyet Halleri, İsmail Akgün Matbaası, Istanbul, 1949, p. 66