This is the English version of a Turkish article. The original, with further detail and linked petition templates, is at Haksız Fiil: Zararı Kim, Neye Göre Öder?.
Where a person causes loss to another through their fault, they must make it good. This is the widest source of liability in the law of obligations, and the four elements — an unlawful act, fault, loss and a causal link — must all be present. The claim is time-barred two years after the injured party learns of the loss and of the person liable, and in any event ten years after the act — unless the act is also an offence carrying a longer criminal limitation period.
From a road traffic accident to an insult, from a neighbour's flooded pipe to a smear published online, a great many disputes are resolved under this heading. This article explains the elements, how they are proved, and the time limits.
The Four Elements
Four elements must be present together for liability in tort to arise:
- An unlawful act. Conduct that infringes a value protected by the legal order.
- Fault. Intention or negligence. Cases in which the law imposes strict liability are an exception.
- Loss. A reduction in assets or an infringement of personality rights.
- A causal link. The loss must have arisen from that act.
If any one of the four is missing the claim fails. In practice the element most often disputed is the causal link: did the loss really arise from that conduct, or did another cause intervene?
Who Bears the Burden of Proof?
In tort the burden lies as a rule on the injured party: they must establish all four elements.
This is an important difference from breach of contract. In a contractual relationship the creditor need only show that the obligation was not performed; it falls to the debtor to prove absence of fault.
The same events may amount both to breach of contract and to a tort — bodily injury caused by a defective service, for instance. The injured party may then rely on both bases, choosing according to which is more favourable as regards the burden of proof and the limitation period.
Calculating the Loss
Pecuniary damages compensate the reduction in the injured party's assets. The principal heads are:
- Expenses actually incurred: treatment, repair, transport
- Loss of earnings: income for the period of incapacity
- Future loss arising from a reduction in earning capacity
- In the case of death, damages for loss of support and funeral expenses
Non-pecuniary damages compensate the pain and distress suffered; they are not a means of enrichment. The judge assesses them having regard to the parties' financial circumstances, the gravity of the fault, and the features of the case.
The injured party's own fault is also taken into account: where there is contributory fault, the damages are reduced. Not wearing a helmet or a seat belt are typical examples.
Limitation
A claim in tort is time-barred two years after the injured party learns of the loss and of the person liable, and in any event ten years after the act.
There is an important exception: where the act also constitutes an offence and the criminal law prescribes a longer limitation period, that longer period applies to the damages claim as well. This arises often in traffic accidents and cases of injury, and rescues files where the two years have long since passed.
When a person is treated as having “learned” of the loss can also be contested: where the extent of the loss becomes clear only later (for example when permanent disability is established by a medical report), the period may run from that date.
The Relationship with Criminal Proceedings
The same events may give rise to both criminal and civil proceedings. They are separate routes, and the outcome of one does not automatically bind the other.
Three points to know:
- An acquittal does not dispose of the damages claim. The standard of proof in criminal proceedings is higher; an acquittal for want of evidence does not remove liability in the civil case.
- The criminal court's final findings on matters of fact bind the civil judge.
- The criminal file is a ready source of evidence for the civil case: site inspections, expert reports and witness statements can be obtained from it.
Joining the criminal proceedings as an intervening party therefore also assists the subsequent damages claim.
The general limitation period in tort is two years. But where the act is also an offence and the criminal limitation period is longer, that longer period applies to the damages claim too. Before giving up because “two years have passed”, check whether the act constitutes an offence.