Istanbul Law Review
Can One Claim Compensation for Nervous Shock?Aslı Açıkgöz
Injury from nervous shock refer to the damage resulting from a person’s mental breakdown or psychological disorder rather than the victim being directly injured in an accident. These types of injuries are directly related to one’s mental integrity and therefore to one’s personality rights, which are considered absolute rights. The lack of any special provision for injury from nervous shock in Turkish law may be interpreted as this being a non-compensable injury. However, such a misinterpretation would be contradictory to the general principles of Compensation Law, which seeks merely to protect victims who have been personally injured. Injury from nervous shock is legally recognized by foreign legal systems, although different legal opinions and regulations still occur in this regard. In accordance with modern legal understanding under current Turkish law, one closely related to the victim of a tort is also entitled to claim compensation for damage that has arisen due to a violation of their personal rights independent of the primary victim of the tort. Given the scope of injury from nervous shock, its legal nature and conditions (along with a detailed comparison with Damage by Reflection) shall be broadly examined in order to fully comprehend this fairly new term entered in Tort Law. This study focuses on these matters, as well as the historical development and the related provisions of its recognition in Swiss and Turkish legal systems, in addition to its nature as a form of direct injury and the ability of those not related to the victim to claim compensation for injury from nervous shock in Tort Law.
Şok Zarara Uğrayan Kişi Tazminat İsteminde Bulunulabilir Mi?Aslı Açıkgöz
Şok zarar, ağır bedensel zararla neticelenen kaza benzeri olaylarda doğrudan haksız fiile uğrayan kişi dışında üçüncü kişilerin, aynı fiil dolayısıyla uğradıkları travmaya bağlı ruhsal çöküntü, ağır psikolojik rahatsızlık geçirmeleri nedeniyle uğradıkları zararı ifade eder. Bu zarar, doğrudan bir zarar olduğu gibi kişinin ruhsal bütünlüğü ve dolayısıyla mutlak haklardan kişilik hakkını ilgilendirir. Şok zarar hakkında mevzuatımızda özel bir düzenleme bulunmaması nedeniyle tazmininin söz konusu olamayacağı düşünülebilir. Bu yönde bir yorum, zarar görenin korunması amacını güden tazminat hukukunun genel ilkelerine ters düşecektir. Yabancı hukuk sistemlerinde de şok zarar kavramının benimsenmekle birlikte hakkında farklı görüşler, hukuki düzenlemeler ve uygulamaların mevcut olduğu görülür. Bugün Türk hukukunda gelinen son noktada modern hukuk anlayışıyla paralel şekilde, ilk zarar görenden bağımsız şekilde üçüncü kişilerin de aynı haksız fiile bağlı olarak kişilik haklarının ihlale uğramasından ötürü kendilerinde tezahür eden bu zararı ileri sürebilecekleri kabul edilmiştir. Şu hâlde haksız fiil hukuku kapsamında göreceli yeni bir kavram olarak karşımıza çıkan şok zararın yabancı hukuk sistemlerindeki hukuki dayanağı, hukuki niteliği ve şartlarının (bu kapsamda özellikle de yakın bir diğer kavram olan yansıma zararla karşılaştırılarak sınırlarının) net olarak belirlenmesi, hangi tazminat türü kapsamında talep edileceğinin ortaya konulması önem arz eder. Nitekim çalışmamızda da belirtilen bu hususlarla birlikte Türk hukukunda ilgili kuruma duyulan ihtiyaç üzerine bunun uygulamadaki kabulünün tarihi gelişimi, başvurulan hükümler ve özellikle de şok zararın doğrudan zarar olma niteliği üzerinde durulmuştur. Bu itibarla ölen ya da ağır yaralanan kişinin yakını olmayan üçüncü kişiler bakımından da söz konusu olabileceğinin kabulüyle birlikte bunun beraberinde getirebileceği sorumluluk kapsamının aşırı biçimde genişletilebileceği riskine de dikkat çekilmiştir.
Injury from nervous shock (Schockschaden) refers to the types of damage caused by the mental breakdown or psychological disorder of a person other than the victim who’d been directly injured or died in an accident. One of the most striking examples of nervous shock is the mental depression of a mother who’d witnessed an accident where her son’s legs had been amputated by a train. Examples of these kinds of injuries can easily be counted, as these cases are very common in daily life. Although injury from nervous shock is legally recognized by foreign legal systems, they still have different legal opinions and regulations regarding this field and therefore the subject remains open to discussion.
In Turkish law, injury from nervous shock is a fairly new term, and thus no legal regulations nor comprehensive definition exist for it other than some brief mentions in the legal doctrine. The lack of any specific provisions regarding injury from nervous shock may lead one to interpreted these types of injuries to be non-compensable. However, such a misinterpretation would clearly be contradictory to the general principles of compensation law, which merely seeks to protect victims that have been personally injured. In this regard, these specific types of injuries require the immediate attention of Turkish legislators and authorities.
The injuries caused by nervous shock relate to the legal liability of the tortfeasor in Tort Law. The nature of these types of injuries are very similar to the concept of Damage by Reflection, as also regulated in the Tort Law of the Turkish legal system. However, these two types of injuries have different meanings and therefore shall be distinguished from one another. Damage by Reflection is the damage that occurs from a breach of contract or the tortious act of a legal entity that violates the personal rights of a person other than the direct victim who’d been subjected to this breach of contract or tortious act. Because Damage by Reflection aims to provide legal protection to persons other than the victim who’d been directly damaged, these types of damages can only be claimed if relevant special provisions exist that can be applied. A typical example of such damage occurs in the Turkish Code of Obligations regarding the loss of support of the victim’s relatives. However, injury from nervous shock only involves people who have a close relationship with the victim or who witnessed an accident where the victim had been heavily injured or died as a result of a tortious act. The main feature of injury from nervous shock pertains to the types of damages only derived from being a relative of the victim or witness to the accident itself, not because of indirectly being a victim. Subsequently, injury from nervous shock cannot be referred to as indirect damages. This type of injury is a direct form of damage regarding one’s mental integrity. In other words, it involves personality rights, which are considered absolute rights. A compensation claim in this regard therefore has a nature independent of a claim for loss of support as in Damage by Reflection.
Injury from nervous shock can only be claimed if the case possesses the elements of proper causal link and illegality. The persons who are entitled to be claimants are only limited to very close relatives of a victim who has been directly injured or died or to one who witnessed the accident. Broad interpretation of the scope of the term “close relatives” is to be avoided but should instead only include parents and immediate family. In addition, the claimant should be seen to have suffered severe emotional distress or a psychological breakdown that leads to a breach of mental integrity. The compensation for injury from nervous shock as ruled by the court may be pecuniary as well as nonpecuniary.
The most common cases of claims of injury from nervous shock in Turkish courts have been made by the relatives of those injured in traffic accidents. Previous decisions of the Turkish Supreme Court showed reluctance to acknowledge injury from nervous shock and rejected any claims thereof due to the lack of legal precedence. However, the Court’s view has changed over the course of time. Since its 1995 benchmark decision, the Court’s position has fully transformed to allow for injury from nervous shock to be claimed without requiring the claimant to fulfill the heavy burden of proof. However, the Court should also be noted to have avoided using the phrase of “injury from nervous shock” in its decisions.
As a result, injury from nervous shock has a direct link to a breach of personal rights, which holds great significance in Tort Law. In accordance with the modern approaches in foreign legal systems, the Turkish legal system also recognizes the principle that a witness to or a close relative of a victim in an accident is entitled to claim compensation for injuries resulting from nervous shock. The legal liability derived from the violation of personal rights is independent from being the primary victim of the tortious act. This principle shall be moved forward both in Turkish as well as all other legal systems, wherein the scope of protection shall be interpreted broadly to include all those whose personal rights have been directly violated.