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Compensation for loss of support, is a type of compensation of importance to the relatives of a person who has died as a result of a tort and who have been deprived of that person’s support. In this article we discuss the concept of support, who may claim the compensation and from whom, the factors taken into account in the calculation, the limitation period and the competent court and venue.
Currency note
This article was prepared on the basis of the legislation and practice in force on the date of its publication. Since then, there may have been changes in the legislation and case law concerning the principles for calculating compensation and procedural requirements such as applying to the insurance company before filing a lawsuit. You are advised to consult a lawyer regarding the current position.
Compensation for loss of support is, in its most basic definition, a type of compensation that those deprived of a person’s support following that person’s death as a result of a tort may claim from those liable.
The tort giving rise to the loss of support may occur for a wide variety of reasons. The situations most frequently encountered in practice are work accidents, traffic accidents, medical error (malpractice) and criminal acts. Those deprived of the support of a person who dies as a result of such torts are entitled to claim compensation for loss of support from the persons who caused the tort or who are legally liable.
As regards the concept of support in the legal sense, the settled case law of the Court of Cassation and legal doctrine hold that, for there to be support from the deceased (the person who died) , the deceased must, had they not died, have been meeting the maintenance of that person in whole or in part, or have been very likely to do so in the future; such support must not be temporary, must be actual and regular (not assistance given once or irregularly), and must be such as would have continued after the event causing the damage. Furthermore, a distinction is drawn between support existing for a person or persons at the time of the event, referred to as ““actual (real) support”, and support very likely to arise in the future, referred to as “hypothetical support” .
Actual (de facto) support
Support existing for a person or persons at the time of the incident
Farazi destek
Support highly likely to arise in the future
The spouse, children, mother and father of the deceased are directly included among those deprived of support. In this respect, the spouse, children, mother and father of the deceased are entitled to claim compensation for loss of support. This constitutes a presumption in our law. According to the settled case law of the Court of Cassation, since it is accepted that parents support their children, children support their parents and spouses support each other throughout their lives, these persons are not required to prove support when claiming compensation for loss of support. Only the opposing party may rebut this presumption by evidence. Unless rebutted, the presumption is deemed valid.
Anyone who received support from the deceased during their lifetime is also entitled to claim compensation for loss of support. Here, however, there is no presumption, and the claimant must prove the support. Persons in this group may be relatives of the deceased, but may also be a close friend, partner or fiancé(e) with no blood relationship. As stated above, these persons must prove that they received support. If they cannot prove it, it will be concluded that they have no right to claim.
In conclusion, the persons who may make this claim can be grouped into two categories:
1. grup · Destek karine kabul edilir
The mother, father, spouse and children of the supporter (the deceased), each of whom is individually entitled to claim this compensation.
Group 2 · Support must be proven
Persons who received regular and actual support from the supporter (the deceased) during their lifetime.
Compensation for loss of support is primarily claimed from the person who caused the tort. However, depending on how the tort causing the death occurred, the claim may also be brought against persons who are legally liable. For example, claims for compensation by those deprived of the support of a person who died in a traffic accident
May be directed.
As another example, claims for compensation by those deprived of the support of a person who died in a work accident may be directed against
As briefly stated above, claims may essentially be directed against the person who committed the tort and the persons whose liability is regulated by law.
The article explains the factors taken into account in the calculation in the following order:
When a claim for compensation is made by those deprived of support, there must first be a causal link between the tort and the death. Once a causal link is established, the fault of the deceased in the occurrence of the tort is examined. The compensation for loss of support will be reduced in proportion to that fault, since, under the principle that no one may benefit from their own fault, it is important that this be taken into account.
Once these matters have been clarified, the earnings of the deceased must be calculated and determined. If the deceased did not practise a profession, for example if they were a homemaker or a child under 18, the calculation is made on the basis of the minimum wage on the date of calculation. However, if the person had a profession and their monthly earnings from it are known, the calculation is made by determining their monthly earnings taking into account the rates of increase as at the date of calculation. If the person was self-employed and worked in more than one job, their actual earnings must be established by submitting concrete evidence. If these matters cannot be proved or no result can be obtained from comparable wage enquiries, the calculation will again be made on the basis of the minimum wage on the date of calculation.
In the calculation, matters such as the age of the deceased, when they would have retired and how many more years of working life they had are also taken into account. Here, the calculation is made on the basis of a twofold distinction between active and passive life expectancy. In addition, if there is a professional statute governing the profession practised by the deceased, and that statute contains special provisions on matters such as retirement age, these must also be taken into account in the calculation.
An action for compensation for loss of support must be brought, after death has occurred as a result of the tort, within 2 years from the date on which the person liable to pay compensation became known and, in any event, within 10 years.
From the date of knowledge
2 years from the date on which the person liable for compensation became known
Her hâlde
10 years
If the act also constitutes a crime
The point to be noted here is whether the tort also constitutes a criminal offence. If the act also constitutes an offence, the limitation period laid down in the Turkish Criminal Code for that offence is also accepted as the limitation period for the action for compensation for loss of support. In other words, where the TCK provides for a limitation period longer than the 10-year general limitation period applicable to actions for compensation arising from torts under the Turkish Code of Obligations, the criminal limitation period laid down in the TCK is taken into account.
In this respect, it is also important that the criminal investigation procedures relating to the death resulting from the tort, and the necessary complaints and notifications (notification to the Social Security Institution (SGK) in the case of a work accident) , be carried out. Being represented by a lawyer throughout all these processes will benefit citizens in avoiding any loss of rights.
An action for compensation for loss of support may be brought in the court of the place of residence of the person who caused the tort (the defendant) , the place of residence, registered office or branches of the legal or natural persons who are legally liable, or the place where the tort occurred.
As for which court the action should be filed in, although this depends on determining the legal liability position, the Civil Courts of First Instance, the Commercial Courts of First Instance and the Labour Courts may have jurisdiction to hear these actions. An action filed without establishing legal liability and without making the required applications may be filed incompletely, with the result that full compensation cannot be obtained, or the action may be dismissed for lack of a procedural precondition.
Although compensation for loss of support is a head of pecuniary damages, those deprived of support may also bring an action for non-pecuniary damages against the persons liable on account of the tort in question. This is because it is clear that these persons have suffered non-pecuniary harm owing to the grief and suffering experienced by the relatives as a result of the death.
Related page: Traffic Accident Lawyer in Ankara — diminution in value, replacement vehicle, and compensation for accidents involving injury and death
Related legislation: Turkish Code of Obligations No. 6098 (mevzuat.gov.tr)
The deceased's spouse, children, mother and father, and persons who received regular and actual support from the deceased during his or her lifetime, may claim it. Persons in the second group may also be non-relatives, but they must prove the support.
According to the settled case law of the Court of Cassation cited in the article, support is presumed for these persons and therefore no proof is required; the presumption can be rebutted only by the opposing party through evidence.
It may be directed at the driver of the vehicle that caused the accident through his or her fault, the traffic insurer (compulsory financial liability insurance, ZMSS), the comprehensive (kasko) insurer if there is an Optional Financial Liability clause, the vehicle owner and the vehicle's operator.
It may be directed at the employer (both employers, where there is a subcontractor-principal employer relationship) and at the insurance company that issued the employer's liability insurance policy.
The causal link between the tort and the death, the deceased's degree of fault (a reduction is made in proportion to fault), earnings, age, retirement and remaining working life, and active and passive life expectancy are taken into account. For a homemaker or a child under 18, or where earnings cannot be proven, the minimum wage is used as the basis.
The action must be brought within 2 years of the date on which the person liable for compensation became known and, in any case, within 10 years. If the act also constitutes a crime and the criminal limitation period is longer, that period applies.
Yes. Compensation for loss of support is an item of pecuniary damages; a separate action for non-pecuniary damages may be brought against those responsible for the grief and suffering caused by the death.
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