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LIABILITY IN LAW
LIABILITY IN LAWLiability in law; in case of damage and to the extent of the damage. In other words, in order to talk about a liability, whether it is contractual or non-contractual, there must be a damage.
This article will focus on liability for bodily harm due to contractual or non-contractual reasons that are frequently encountered in practice.
1-Legal Responsibility of the Physician:
Ø Full Hospital Admission Agreement: It is a contract between the hospital and the patient. Here, the parties to the contract are the patient and the hospital. If the person goes to the hospital and says “I have this or that ailment, heal me”, that is, if the patient does not choose the doctor but leaves the diagnosis and treatment to the hospital, the responsibility in this case rests entirely with the hospital. The hospital is obliged to provide all kinds of services required by the treatment here. Therefore, all the rights and obligations arising from the contract are on the hospital. Here, the patient is also obliged to pay a fee to the hospital for the services he receives.
Ø Hospital Admission Agreement Supplemented with a Physician Agreement: In case the patient makes a separate treatment agreement with the physician in addition to the full hospital admission agreement with the hospital. If the patient chooses a doctor working in the hospital and has him treated, then the doctor and the hospital have joint responsibility. So here, the hospital is perfectly responsible for the responsibility of the employer. Because the doctor is an employee of the hospital here.
Ø Non-Departmental Hospital Admission Agreement: The hospital is only responsible for providing hospital care, and the contract regarding diagnosis and treatment is established between the patient and the physician. In other words, the patient goes to a doctor privately and gets treatment and the doctor undertakes the operation of this person, but if he performs this surgery in a hospital rather than in his own practice, in this case, the hospital and the doctor are responsible separately. Therefore, here, the physician, the diagnosis he made and the treatment he applied, the damage he caused due to the surgery; the hospital is only responsible for the care, the surgical team and equipment it has allocated and the damage they have caused. Here, the hospital has no responsibility in terms of diagnosis.
2-Carriage Contracts:
Each ticket purchased during our journey by iron, air, land and sea is a contract of carriage. With this contract, the carrier is obliged to transport the passengers to their destination in a comfortable and healthy manner. If the passenger did not reach his destination safely, it means that the contract has been violated. Here, even if the carrier has a 1% fault, he is responsible for all the damage.
Since the carriage contract is made by the ticket issuing company, the company is responsible for the damage even if the owner or driver of the vehicle is not at fault. In other words, companies that only sell passenger tickets are also responsible for the damaged person here, even if they are not at fault.
The law holds the carrier responsible if the passenger suffers bodily harm for any reason. The carrier is liable for all bodily harms suffered by the passengers, however, if he proves that the damage has occurred for a reason that they cannot avoid and the consequences of which they cannot avoid, despite fulfilling their duty of care here, they are relieved of the liability.
The vehicle operator is only responsible for the fault of the driver.
3-Service Agreement:
A-) Private Sector: The employer is responsible for ensuring the health and safety of the worker. Therefore, it is possible to say that the employer is obliged to protect the worker in all workplaces. The employer is responsible for work accidents that occur in the workplace. The employer is responsible for the work accident to the extent of his fault. Therefore, the employer must have done all necessary care to avoid liability and must have proven that there is no causal link between the damage suffered by the worker and the workplace activity.
B-) Public Sector: Within the framework of the Civil Servant Law, the state is obliged to keep the health and safety of the civil servants it employs at the highest level. In this context, both to provide health insurance and in case of any damage to the employee, he/she has to cover this damage within the framework of the constitution.
At the same time, the state is responsible for damages caused to third parties during the execution of state services as a result of strict liability.
4-Employer’s Responsibility:
In order for liability to come to the fore here, there must be an employee under the employer’s subordinate and this employee must have harmed someone else while doing the job.
The employer is responsible for the damage caused to the third party by the employee, even if it is not his fault or the employee’s fault. Therefore, the employee is perfectly responsible. However, if the employer proves that it has taken all the necessary care to prevent damage while selecting its employee, giving instructions about his work, and supervising and supervising it, he will be relieved of responsibility.
If the employee has a fault, the employer has the right of recourse in proportion to the fault. In other words, the damage is recourse to the extent that the employee is personally responsible. Likewise, the state has a responsibility as a result of the employer’s responsibility. In fact, the citizen cannot directly sue the civil servant for the damage he has suffered, he has to file the case against the state. The state has the right of recourse in proportion to the fault of the employee.
5-Responsibility of Pet Owner:
The person is perfectly responsible for the damage caused to the third person by the animal under his protection. This responsibility includes not only the owner of the animal, but also the person who is not the owner of the animal, but also takes care of and manages the animal in his possession. The owner of the animal is obliged to compensate the damage of the injured person. If there is a fault of the injured party, a discount can be applied at this rate. Apart from that, the owner of the animal can only be relieved of responsibility if he can prove that he has taken all the precautions and taken the necessary care to prevent the damage.
The situation of wild animals is somewhat different. If a person is harmed on the highway by a wild animal, then the General Directorate of Highways is responsible. However, no one can be held responsible for the damage caused in a forested area.
6-Responsibility of the Vehicle Operator
If a motor vehicle operated on the highway damages the physical integrity of a person due to its operation, the operator is obliged to compensate for this damage. Here, even if the operator has no fault, he is responsible for the damage caused by the operation of the vehicle. According to the law, in order for the operator to avoid liability, he must prove that he or the persons for whom he is held responsible were not at fault and that a malfunction in the vehicle did not cause damage. In addition, he must prove that the damage is due to force majeure or the gross negligence of the injured or third party. As can be seen, the release of the vehicle operator from liability for damage is subject to very strict conditions.
Development Fault: It is also necessary to compensate for the damage caused by not following the technology in a socially operated enterprise or in a society-oriented enterprise. That is, the use of a very old machine (in case of using an old model machine instead of a new model machine that is suitable for the new technological life that may cause less damage or completely eliminate the damage, a defect can be mentioned.)
7-Insurance Contract:
Ø Amount Insurance: This amount is paid when the risk occurs. Regardless of the tangible damage, the amount determined in the insurance contract is paid to the person concerned. Here, the risk is not sought to cause a loss. For example, Seat Insurances, Life Insurances, Accident Insurances are within this scope.
Ø Loss Insurance: The amount paid by the insurance company is limited to the loss. For this reason, the damage must be proven. For example, Traffic Insurances, Compulsory Health Insurances, Occupational Health Insurances, Earthquake Insurances are within this scope.
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