Turkish Law Blog

Employer's Vicarious Liability for His Employee in the Context of English and Turkish Tort Law

Beşir Can Doğan Beşir Can Doğan/ Dogan Legal Consultancy Ltd.
17 June, 2019
812

Abstract

Consistency in business life is far more important than it can be imagined and also trust in business is the cornerstone of relationships with customers, suppliers, employees, and others who have dealings with an organization. In tort law context, the burden of responsibility the employer has to bear on behalf of his employee, in a sense, is essential to maintain continuity in the business environment because of the imbalance power in their relationship where the employer occupies a more dominant position in it.  In both Turkish and English law, employer's vicarious liability is a subject regulated in favor of the third parties in order to prevent the effects of this imbalance of power. It's accepted that the master exercising his authority over his servants must also possess an objective duty of care on them and must also ready to bear the responsibility of the relation. In this article, we will mainly touch on the elements and the comparison of the employer's vicarious liability in both legal doctrines.

Keywords: Tort Liability, Negligence, Employer, Employee, Strict Liability, Vicarious Liability, Dependency Element, Tort, The Course Of The Employment

I. Introduction

The common law system and the civil law system (the predominant legal system in Europe and also the legal system of the Republic of Turkey) possess various main differences. In terms of English law, the fundamental difference between them is that in the former judicial decisions are binding both on lower courts and on the court that has given the ruling. This is called the law of precedent. Unlike Turkish law, there are no formal divisions within English law and it might be difficult to distinguish whether it is Public law and Private law. This obscurity goes for within private law as well and again once can divide roughly whether it is property law or the law of obligations.

In both legal systems, there are three fundamental subjects as the resources of obligations that we can range with a slight difference in the context of the law of obligations:  contract, tort, and restitution[1]. In the vicarious liability culture context, we are primarily concerned with the law of tort.

II. General Comparison between English Tort Law and Turkish Tort Law in terms of Their Principles

Despite the fact that the United Kingdom and Turkey belong to different legal systems, doctrinal studies deeper into the "tort" subject in both laws reveal that the term of "tort" is based on the same principles with slight differences in both legal systems. General defining of tort in both laws, a tort is conducted that damage other people and their property. Therefore tort law is related to civil wrongs and it, as part of civil law, is concerned with actions by private individuals against other individuals or legal persons.[2]

In contradistinction to a liability deriving from breach of contract (contractual liability), the liability of tort comes into question when a breach occurs in the codes of conduct that catalogs the ethical principles and rules of the society. These are the rules outlining the social norms and responsibilities of, and or proper practices for, an individual.

A. General Principles of English Tort Law

As already mentioned, a tort is a civil wrong committed by one party to another but not every kind of civil wrong is considered as a tort. Only a civil wrong that infringes our interest protected by the law can be considered as a tort, otherwise, the tort shall not come into the question at all. The law of negligence is the most widespread area of English law within tort despite that negligence is a relatively new tort in the long history of tort.

The tort has been largely developed by the judiciary. In the context of tort claims such as personal injury, negligence is the main subject which issued in most cases. But who should bear the burden of proof in a tort claim? In other words, who should prove the existence of wrongfulness with its whole elements in a certain type of a tort claim? Actually, the answer to this question lies inside this question. If it's claimed that some behavior or action is against the laws and infringes our legitimate rights, should it be the opponent's obligation to prove their innocence?  Wouldn't it be unfair to impose some obligations on them to justify themselves and wouldn't it lead up to make unfounded claims common as it is easy to make them in particular when we tend to act in bad faith toward the opponent? Of course, it would. For this reason, the burden of proof applied to most civil cases in English law including tort claims is on the claimant on the balance of probabilities. One of the purposes of this rule that's burdened to claimant or plaintiff is to prohibit the bad-faith claims.

As mentioned, the tort of negligence forms one of the most dynamic and rapidly changing areas of liability in the modern common law[3]. So what are the elements of negligence in English law that the claimant must prove in order to present a proper tort claim to the court? In order to submit successfully a negligence claim, the plaintiff or his lawyer must establish each of the four elements of negligence by a preponderance of the evidence:

  1. Duty of care, 
  2. Breach of the duty,
  3. Damage,
  4. Causation.

Firstly, speaking of the duty of care, in brief, it is a legal obligation that every individual of society needs to possess in order to ensure the safety or wee-beings of others. The modern approach to deciding whether a duty of care exists involves applying one or more of three tests based on (a) foresight; (b) proximity; (c) considerations of justice and reasonableness in imposing the duty. [4]  In English law, the boundaries of duty construct were set in the famous judgment, Donoghue v Stevenson. This ruling possesses importance in English tort law history because House of Lords accepted the general duty concept in this judgment by refusing the previous law that narrows down the boundaries of duty of care and that accepts the liability for careless behavior to exist only in a number of separate, specified situations. In this famous judgment, Lord Atkins indicated that we, as a part of the society, must take reasonable care to avoid acts or omissions which we can reasonably foresee would be likely to injure our neighbor. He then explained who we need to consider as our neighbors by stating persons who are so closely and directly affected by our actions that we ought reasonably to have them in contemplation as being so affected when we are directing our mind to the acts or omissions which are called in question.[5] Despite this case is not directly related with health and safety at work, it's accepted that this case is the keystone of the modern common law of negligence and outlines the basis of all the current rules relating to employer’s liability at common law for failure to take reasonable care to ensure the health and safety of employees. For there to be a duty of care in a particular case, the harm in question must have been foreseeable to the individual claimant.[6] Another case that possesses vital importance in the history of the common law of negligence in terms of establishing a duty of care is Caparo v Dickman.[7] This case laid bare and emphasized proximity and foreseeability terms and also indicated that it must be fair, just and reasonable to impose liability on the defendant in all circumstances. In conclusion, the plaintiff must prove that the defendant owed him/her a duty of care based on these criteria.

Once it is shown by the claimant that the defendant owned him/her a duty of care, the plaintiff then must prove that the defendant has breached his duty of care. The standard of the duty of care is determined in each case separately, which it is set to be in accordance with the appropriate conduct of a reasonable man in the profession, occupation or activity in question. This is objective standard in this matter and the boundaries of it are considered regardless of the defendant's personal idiosyncrasies. The question of whether a person has fulfilled a particular duty is a question of fact.[8]

General defining, the damage is a decrease that occurs in someone's property without their consent of knowledge. In law, it is considered to comprise more widespread content and it is divided into two divisions as pecuniary damages and non-pecuniary damages. Pecuniary damages are generally assessed on the basis of calculable losses for items such as the plaintiff's prospective loss of earnings and profits and costs of future care, as well as other expenses. Non-pecuniary damages are damages for “pain and suffering”, sometimes also described as “loss of enjoyment of life”. These damages are supposed to compensate the plaintiff for having to experience symptoms caused by the accident, having a loss of expectation of life, etc.  The plaintiff is also obligated to prove that the defendant's breach of duty of care caused the damage or loss he/she incurred. As a preliminary test in deciding whether the defendant’s breach has caused the plaintiff’s damage, English courts have developed the ‘but for’ test.[9] The main principle of this lies in this question:  But for the defendant’s tort, would the plaintiff have incurred the loss or damage? If the answer is no, then the causation test is satisfied. If it is yes, the defendant will not be liable, even if he has acted negligently.

B. General Principles of Turkish Tort Law and Main Differences from English Law

Turkey's civil code is based on a Swiss model. The first original Turkish Civil Code was derived from the Swiss Civil Code in 1926. Turkish Code of Obligations (Türk Borçlar Kanunu,)[10] is the fifth book of the Turkish Civil Code and the complement of it despite it has been published separately.

In contradiction to English law, tort law is divided into two main subjects in Turkish Law of Obligations: fault-based liability and no-fault based liability.

According to the Turkish Code of Obligations tort liability, in principle, is based on that the defendant is at fault and no-fault based liability situations are exceptional and are regulated separately in this code and the other codes, which one of them is employer's liability. According to the Art 49, which governs the fault-based liability “Any person who, by his faulty and unlawful behavior, causes damage to another is obliged to provide compensation??"

In order to have tort law liability come into the question, it depends to meet the all criterion in Art 49, except for the situations regulated for peculiar circumstances. Considering the principal in the Art 49 of TCO[11], we can range the criterion of the tort liability like this:

  1. Act
  2. Unlawfulness on the act
  3. Damage
  4. The casual link between the damage and the act
  5. Fault

As has been observed, despite the fact that the "tort" definitions are similar in Turkish and English law, the elements of the tort are considered in a different way from each other. In order to establish a successful fault-based tort claim, firstly, there has to be an act of the defendant. Although the act is defined as to get in action or behave in a stated way in the dictionary, it refers more widespread content and also represents the situations where not to be in a particular action(omission), in legal terminology. Thus, act in law, it is voluntary conduct of an individual and that might occur in both active and inactive situations. For example: if a nurse obligated to give medicine to her patient does not fulfill her stationary duty and give the necessary medicine to the patient on purpose, the act of the nurse shall still come into the question on this occasion. (omission).

Accordingly, in order to be considered unlawful, the harmful act should have violated an absolute right. The fault element and unlawfulness on the act concept might get mixed with each other easily. While unlawfulness on the act refers that a particular act is against the laws,  the fault is related to the condemnation of the defendant's act. Therefore while unlawfulness on the act is a matter of objective evaluation, the fault is a matter of subjective evaluation in terms of the defendant.[12]

Compensation only comes into question, if the unlawful act of the defendant causes a loss or damage to the plaintiff. In Turkish case law, damage means material or immaterial harm to a legally protected interest and includes pecuniary and non-pecuniary damage[13]. Non-pecuniary damage relates to the pain and suffering or other mental distress which arise as a result of the injury suffered. Pecuniary damage corresponds to the difference between the actual state of the victim’s patrimony and the state it would have been in if the tort had not occurred.[14]  If any damage or loss does not occur although the unlawfulness of the act, the defendant will not bear the liability of the tort, even the act of the defendant is subject of a criminal offense.  For example: in terms of the lawfulness of the act, it is obviously against the laws to lace someone's drink with the corrosive poison.  However, the person wanted to killed might manage to survive because of some medicine he drank before had neutralized the poison. In this case, despite the unlawfulness of the act (poisoning), the tort liability will not come into the question due to no damage or loss has occurred.

In order to demand a compensate, it has to be demonstrated that there has been a causal link between the unlawful act and the damage. In Turkish law, the appropriate causation link theory has been accepted in this matter. For the court to make a finding of a causation link between the act and the damage, it has to be applied a two-fold test. First, they will examine whether the first event is a necessary condition of the second (conditio sine qua non test). Then, they will determine, according to the ordinary course of events and the general experience of life whether the cause was very likely to generate a result of the kind which occurred (adequacy test).[15]

The fault is the fundamental element of the fault-based tort liability. The fault is not defined in the Turkish Code Of Obligations, in fact, it is a term that possesses no common acceptance regarding its definition. Considering the general definitions in legal doctrine in Switzerland and Turkey, it can be described as desiring the unlawful result(intent)or not using willpower sufficiently in order to avoid unlawful conduct (omission).[16] Turkish courts determine fault by the objective standard of the ‘reasonable person’, which is based upon what a ‘reasonable person’ would have done under circumstances similar to those the defendant was under.[17]

As mentioned, the other division in tort in Turkish law of obligations is a no-fault based liability. Turkish Code of Obligations breaks down liability without fault into three sub-categories: liability based on equitable considerations (A), due diligence liability (B), and strict liability for dangerous activities (C).[18]

Speaking of the burden of proof in tort claims in Turkish law, according to the Art. 6 of the Turkish Civil Code[19] regulating the burden of proof, each party is burdened to prove the existence of facts they grounded. In tort liability, in order to be in accordance with this general principle, the burden to prove the tortfeasor's fault lies on the injured party, which the same principle has also been adopted in English law.

As it can be seen, in contrast to Turkish tort law principles that commence compiling the elements of tort from individual acts of persons, in particular, fault-based tort liability,  English law accepted a general obligation rule of law, the duty of care, that requires to consider the boundaries separately for every single occasion  and the main rule in establishing negligence is based on the breach of this duty. In fact, tort claims in Turkish law are also made on the basis of the duty of care concept, which the element of unlawfulness on the act is completely related to breaching a duty of care deep down.  It will be likely to observe that same acts similar to each other in terms of a tort, shall cause the same civil liability in both legal systems, the fundamental division in this matter are that the same acts are made the subjects of different legal norms and are evaluated in accordance with these norms.

III. Employer's Vicarious Liability in English Law

English law imposes considerable burdens upon employers both in relation to torts committed by their employees and in respect of duties owed by employers to their employees. The nature of the duties of employers varies according to the circumstances and, in some instances, employers will be liable irrespective of any fault of their own, while in others it is necessary to prove fault on the part of the employer.[20] In English law, the liability of an employer may be divided into two aspects. There is his liability to his employees and his liability for the acts of his employees to third parties, and both of these represent ‘stricter’ forms of a liability than negligence.[21]

A. Employer's Responsibility for the Acts of His Employee towards Third Parties

The liability of an employer on behalf of his employee is defined as "vicarious liability" in English tort law and it refers to a situation where an employer is held responsible for the tort of his employee committed against a third party in the course of employment. This tort liability represents a strict liability in the truest sense of the word and no fault is required on the part of the employer in order to establish the tort claim, however, if the employer is at fault, he might be directly liable in negligence towards the third party. A distinct advantage of vicarious liability to plaintiff is the fact that even if the particular individual who committed the tort is unidentifiable or cannot be traced, it will usually be possible to identify the employer, and if that employer is a corporation it will be possible to bring an action even if the employee-tortfeasor has fled the jurisdiction to escape legal action.[22]

In order to establish a vicarious tort liability on the employer, there are a couple of things and the plaintiff must demonstrate:

  1. That the person who causes the damage or loss is an employee of the employer (not an independent contractor hired by him to carry out work)
  2. That the employee committed the tort. ( by satisfying the general rules of tort liability)
  3. That the tort committed in the course of his employment.

I. Relationships of Control

First of all, in order to detect the relationship, the court must take a look into the relationship between the employer and the employee and determine whether it possesses all elements of an employment contract or it is a relationship of an employer and an independent contractor. It has been accepted by the judiciary that no one test can adequately cover all types and instances of employment[23] However, some tests were developed by English courts to decide on the feature of the relationship. The traditional test is in terms of control, that is, degree of control. Where substantial control of the working conditions of the worker is being exercised, the more likely it is that the worker is an employee.[24]  This test involves asking who, exactly, is in control of the individual’s work. Employees tend to have the nature of their task dictated specifically by their employer, whilst independent contractors tend to have more personal control.[25] If the employee fails to come within the criteria then the tortfeasor will not be an employee but an independent contractor for whom with exceptions, the employer is not vicariously liable: employee – contract for service;  independent contractor – contract for services;  certain criteria are to be taken into account in cases where uncertainty exists[26]

The other test developed by English courts to determine the character of the relationship is the organization/integration test that was proposed by Lord Denning in Stevenson Jordan and Harrison Ltd v McDonald and Evans (1969). This test takes into account the feature of the service definition whether is made as "contract of services" or "contracts to provide services". In this judgment it indicated that under a contract of service, a man was employed as part of the business; whereas under a contract for services, his work, although done for the business, was not integrated into it but is only accessory to it.  Despite it can be anticipated that a contract may completely clarify every aspect of the relationship between the employer and the employee whether it is an employment contract or service contract, it's still not conclusive and it's still open the court to consider.

II. Employee Must Commit the Tort

Once the relationship between the employer and the employee is defined by the court as a genuine employment contract with no doubt, the plaintiff then must show that the act of the employee towards him meets all elements of the general tort liability. This requirement seems obvious since vicarious liability is, by definition, liability imposed on one person for the wrongdoing of another[27]  Considering once again the elements of a negligence claim, the plaintiff has again the burden of proving these, in order,: that the employee owed a duty of care to him, that he breached his the duty, that this breach of duty caused the damage and that causation between the damage and act of the employee. One technicality should be noted. If the employee (etc.) enjoys immunity from lawsuits by merit of their personal status, their employer will not receive the same protection, Broom v Morgan [1953] 1 QB 597. [28]

III. Tortious Act Must Be in the Course of the Employment

This is the most crucial condition of the vicarious liability in the context of establishing negligence.  Proving that the tortious act has occurred in the course of the employees might be the most difficult and trickiest one to demonstrate as employers are easily likely to deny employment relationship between them and the tortfeasor employer. However, there are various forms of employment situations which can be detected with regard to this element of vicarious liability. In fact, English courts do not possess coherent decisions with each other regarding whether the tortious acts of the employees accepted in the course of the employment or not. Nevertheless, it is observed that the employer is generally liable for wrongful acts which are actually authorized by him, and for acts which are wrongful ways of doing something authorized by the employer, even if the acts themselves were expressly forbidden by the employer.[29]

Authorized acts:  If an employer explicitly authorizes one of his employees to commit a wrongful act which meets all creation of negligence in the context of a tort, then the employer shall be primarily responsible.

Wrongful modes of doing authorized acts:  If the employee is doing the job he is authorized to do but contrary to the manner in which he has been instructed to do it, then the employer will be vicariously liable. In Whatman v Pearson (1868),[30] the employer instructed his employees that they were not to go home or leave their horses during their dinner break. An employee went home and, in his absence, his horse damaged the plaintiff’s property. Although it is difficult to extract a general principle from the cases, it appears that, if the person who is injured was performing some act which contributed to, or provided some benefit to the business of the employer, there will be a vicarious liability (Rose v Plenty). If the employer derives no benefit from the forbidden act (Twine v Beans Express), there may be no vicarious liability [31]

Explicitly Prohibited Acts: The employer's liability deriving from an act of an employee that executed in a manner in which he has been instructed not to is a different subject of a liability compared to the liability deriving from an act of an employee that performed despite that the employee had been told it was outside the scope of his job.

It's accepted that the employer's liability shall not come into the question in the situations where he explicitly has forbidden his employee to perform a particular act that might lead a tort as this prohibition is sufficient to break the link between the employee’s conduct and the employer. Iqbal v LTE (1973)[32] is the case regarding this matter where a bus conductor had been told on many occasions not to move buses and the employer was consequently not liable when the conductor injured someone while moving a bus in the depot. Driving was outside the scope of the conductor’s employment.

IV. Distinguishing Between Employment and Personal Conduct

In the matter of establishing a vicarious liability on the employer, sometimes the fundamental controversy can arise in the feature of the act of the employee regarding that whether it was employment conduct or personal conduct. In particular, the disputes increases to another level if the action of the employee occurs within working hours and in the workplace (so between 9-5 and in the employee’s office, for example.)  The law, thus, makes a distinction between an employee’s conduct which is in the course of employment and conduct which can be considered ‘a frolic of his or her own’. This distinction can be traced back to Joel v Morison [1834] 172 ER 1338[33] where the subject of the case was a car accident between a pedestrian and a cart driver. The cart driver hit the pedestrian when he was walking on foot on a public highway and the main legal dispute of the case was regarding whether the master of the cart driver was liable in damages for the careless driving of the latter or not.  In conclusion, the verdict was in favor of the Storey v Ashton[1869]is another predominant case contributing this distinction whether the conduct is personal or employment. In this case, the defendant employer, a wine merchant, sent his carriage driver to deliver some wine. After he had finished the deliveries, the driver went to visit his brother-in-law. During this journey, he knocked down the plaintiff and injured him. The courts rejected the claim against the driver’s employer – it was held that the driver was engaged in a new and absolutely unauthorized journey. As a result,  the defendant was not liable in this instance as the court considered that the car man was operating a new and independent journey from the one he was instructed to do.[34]

V. Right to Indemnity in Employment Contracts in English Law

Employment contracts are structured on a main basis of employees will perform reasonable care when performing their duties. Thus, in case of potential damages that employers might incur due to their employees' careless behaviors' during their employment, there are also clauses in contracts that obligate pecuniary liability to employees in the breach of their duties. At common law, in situations where employees fail to carry out their side of the obligations and when they are negligent in breach of such a term and theoretically, employers who have been held vicariously liable for tort could seek an indemnity from employees to make good the loss.[35]   This principle was laid bare in the case Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555. The defendant was held vicariously liable when one of their employees negligently backed over another employee in a lorry. The defendant’s insurance company then brought a case on behalf of the defendant against the employee. They were successful – the employee had not been acting with reasonable care and skill, and thus had breached an implied term of their contract.[36]

VI. Employer's Vicarious Liability in Turkish Law

As mentioned above, despite the fact that tort liability situations in the Turkish Code Of Obligations are regulated as a fault-based liability as a general rule, no-fault based tort liability situations are described separately and exceptionally in TCO and other codes. The legislators of Republic of Turkey adopted various approaches regarding the classification of no-fault based tort liability in the Turkish Code of Obligations and as it will be seen,  there are three fundamental division regulated in the Art 65 :

  1. Duty of Care Principle
  2. Equality Principle
  3. Risk Principle

Employer's vicarious liability for the acts of his employees towards third parties in tort claims is technically grounded on the duty of care principle in the context of no-fault based tort liability. It's accepted that if any damage or loss occurs under the thumb of someone, which that doesn't make any difference whether the offender is an animal or an individual (such as an employee e.g.), the primary liability shall belong to the authority owner on them. Yet, the person that possesses the authority has also the opportunity to supervise and inspect.

A. Employer's Responsibility for the Acts of His Employee towards Third Parties and Main Differences from English Law

According to the Art.66/1 of the Turkish Code of Obligations; "An employer is obligated to recover loss or damage caused by his employees towards third parties in the course of their employment.

The second clause of the article as follows: " If the employer proves that he took all due care in recruitment, business assignment and supervising to avoid a loss or damage, then he shall not be held liable". However, even if an employer is not at fault in fulfilling his duty of care, his liability still shall come into the question, in fact, his liability is based on no-fault[37]

As mentioned above, the Turkish Code of Obligations was originally derived from Swiss Code of Obligations and employer's vicarious liability in Swiss law of obligations regulated in Art 55 of the Swiss Code of Obligations[38] as : "An employer is liable for the loss or damage caused by his employees or ancillary staff in the performance of their work unless he proves that he took all due care to avoid a loss or damage of this type or that the loss or damage would have occurred even if all due care had been taken."

The liability imposed on employers in the context of the Art 66 of TCO, is related to recruitments that are the only subject of civil law matters and the employer either can be a real person or a legal entity. If the duty undertaken by the employee can be considered as only a voluntary act in order to assist his employer in fulfilling an obligation towards a third party and if the employee causes any damage or loss during his conduct, in this case, the liability of employer shall be the subject of the Art.116 TCO that regulates the employer liability arising from his helper's acts instead of the Art.66.

In the context of the employer's vicarious liability toward third parties, it's necessary and sufficient that recruited employee commits an unlawful act against a third party in the scope of the employment. In fact, as this creation has been satisfied, the existence of the employer's vicarious liability regulated in Art.66 of TCO shall be accepted as the presumption. However, it's possible to get rid of the liability as long as the employer is able to refute the presumption.[39]

a. Elements of the Vicarious Liability in Turkish Law

i) A Third Party Must-Have Incurred Damage

The notion of damage is considered to contain more widespread content in Turkish law and it refers to both pecuniary and non-pecuniary and both material and non-material damages. We reiterate the previous statements regarding the definitions of damage in this section.

ii) The Damage must have arisen from the Unlawful Act of the Employee

The victim, one suffered from the damage or loss, once again must prove that the offender was an employee of the employer and also must prove the existence of the act, unlawfulness of the act and the causation between the act and the damage.

However, the fault of the employer is not the subject of the burden of proof the plaintiff must bear as the liability is based the on no-fault principle.

Speaking of the unlawfulness of the act, in order to hold the employer liable vicariously,  it's accepted in both doctrine and judicial decisions that the act of the employee must violate the legitimate rights of third parties.[40] Notwithstanding, if there is a situation providing immunity to the employee in terms of his unlawful act towards the third party, such as consensual act ( the consent of the person), self-defense, in this case, the employer once shall not be held liable, which we could also reach the same conclusion from the consideration of that the employer has taken the all due care to avoid a loss or damage.

Another a crucial element of this liability is that the person who commits an unlawful act and cause the damage or loss must have been the employee of the employer, in other words, he must have been recruited by the person (the defendant) held liable. This requirement is superb essential. In order to accept that a person was recruited by another person, it requires to be depended on the recruiter and to perform under the command of him.[41] Imposing strict liability for the employer on duty of care is mainly related to the dependency degree of the relationship and to his dominant role in the relationship that provides himself a commanding authority.

Speaking of the other employment situations where staffs hired to prove their services for only one occasion, such as contract jobs and the businesses conducted by the contractors, the relations between recruiters and them shall not give rise to any situation for the employers to be held liable as the relationship shall not have satisfied the dependency criteria. .

iii) The Damage Must Have Occurred When the Employee was on His Job and Performing His Duty

This element, in fact, refers to the functional bond existed between the employer and the act performed by the employee. In order to hold the employers liable, it's very essential that the employee's unlawful act possessing all elements of a tort occurs the in the course of the employment and it's also necessary and crucial to identify whether the act of the employee was a personal or employment conduct.   For instance, if a roof tile slips out of our hands when nailing down them on the roof as a part of our business, if someone walking down the street gets wounded from his head at that time, this incident shall be considered in the scope of the employment and accepted that the functional bond between the act of slipping the tiles out of hands and the employer existed. In the other example; if an employee working in a manufactory run into his hostile in the factory and start fighting with him, thus if the hostile person gets injured from this fight, in this case, beyond the question, there is no functional bond between the act of the employee and the employer.[42]

It's also accepted that the functional bond existed between the act of the employee and the employer in damages occurred from the situations where the employee has misunderstood the introductions and the directions incorrectly.[43] While determining the function of the act of the employee, there is no difference between employee’s act of commission and employee’s act of omission in terms of contrariety to law. As a rule, if someone’s personal rights or absolute right of assets is violated by an act, this act is accepted as an unlawful act.[44] For instance: omission of a construction worker might occur in the way of not hammering an essential nail into the wall and batten that was supposed to be hanging on the wall properly might fall on a person walking down the street in that time. On this occasion, the vicarious liability of the employer shall still come into the question.   

b. Rebuttable Presumption of Strict Liability

If all creation of strict liability described above satisfied, it is accepted in Art.66 of TCO that the recruiter of the person committed the unlawful act has not fulfilled his duty of care on his employee and there was a causal link between the damage and the breach of his duty on his employer as the presumption.[45] Thus, as the result of this principle, the employer (the recruiter) is held liable for the damages third parties incur. The presumption of strict liability is regulated as to be based on two main subjects: the presumption regarding the person recruited and the presumption regarding workplace conditions.

i)The presumption regarding the person recruited: Art.66/2 of TCO states that: "If the employer proves that he took all due care in recruitment, business assignment and supervising to avoid a loss or damage, then he shall not be held liable"

ii)The presumption regarding workplace conditions: Art.66/3 of TCO states that: "In a workplace, the employer is liable to recover the damages occurred from the business activity unless he demonstrates that the work order of the business has been convenient to prevent potential damages"

Thus, when all criterion satisfies above, the employer ( the recruiter) shall be held liable based on the presumption accepted as his omission occurred in the way of not taking due care on his employees. However, the liability of the employer shall not come into the question in the event of he has managed to prove that he had fulfilled his obligation of care or to prove that there was no causal link between the damage and his strict liability. (Rebutting the presumption)

In contradiction to the general burden of proof the principle in tort claims, the employer is burdened to prove not to exist the casual link or his omission on his employee in order to rebut the presumption accepted in the first place against him.

There are a couple of keystone aspects in this matter to pay attention in the context of rebutting the presumption of the employer's liability. First of all, in terms of Art.66/2 of TCO, the employer ( the recruiter) must prove that every single matter of duty introduced in the clause has been fulfilled separately, which means he must have taken all due care for both recruitments, assignment and supervising. The second thing to pay regard to is that, even if the employer has fulfilled his duty of care on his employees in order to rebut the presumption related recruitment, he might still be held liable when he fails to carry through his obligations regarding the working conditions of his workplace. The legislators of the Republic of Turkey, so to speak, expanded the strict liability of the employer to another level by imposing additional burdens as to work in order to ensure workplace health and safety and it was required that employers must have identified hazards in their workplace and took steps to eliminate or minimize them. For example: in a short-staffed workplace according to the workload,  despite the employer has hired the most competent staffs, given the accurate instructions and has supervised the employees magnificently in the truest sense of the word, if an employee causes damage to a third party, the employer shall still be held liable. [46]  As a consequence, the liability of the employer is a strict liability and does not require any fault on behalf of the employer, however, the employer possesses the opportunity of getting out of the liability by demonstrating he has fulfilled his objective duty of care as to both his employees and workplace. Otherwise, if he fails to demonstrate this matter, it shall be accepted that the causal link has existed between his breach of duty of care and the damage. But the employer who hasn't managed to prove that he had satisfied his duty of care, only can try to show that the causal link did not exist at all in the first place to get out of the liability. Yet, the causal link needed to be demonstrated not to exist is again the matter that's between his duty of care and the damage not the act of the employee and the damage. Nevertheless, the existence of the causal link between the act of the employee and the damage shall be proved by the plaintiff seeking compensation as following the general principle of the burden of proof.

c. Right to Indemnity

It's obvious that employers occupy more powerful positions in employment contracts and in order to protect the interest of employees which are the weaker party in the relations and likely to incur unfair treatment from the employers, regulations in Turkish labor law have always been brought in to keep the balance in the relationship in favor of employees. The fundamental reason for this burden on employers is to maintain the environment of trust and to provide consistency in business life. Nevertheless, while employers are set to carry these kinds of obligations, they have also been entitled some rights of indemnity to his employees for the undesirable situations their employees put them in. 

Employer's right to indemnity has been regulated in the Art.66/4 in the TCO and according to the clause: " The employer reserves the right to indemnity against his employer who caused the loss or damage to the extent that such person is liable in damages."

In point of fact, this clause was formed on the basis that the employee has breached his conventional obligations towards his employee and he must cover the damages his employer incurred because of him. Furthermore, it's accepted in the doctrine that the employer must have paid the indemnity first to the person injured from this employees unlawful act and then he must sue his employees caused the damage.

V. Conclusion

As can be seen from the above, English tort law and Turkish tort law do not exist on two very different poles within the context of the employer's vicarious liability. They both possess so much in common and also some main differences. First of all, it can be noticed that both legal doctrines fundamentally require the notion of “dependency" in the relations between employers (recruiters) and the employees to held employer liable. In order to detect this element in a relation, beyond the employment, the person (employee) must be the under authority and control of the employer and must be completely engaged by his orders. This element is crucial because all employment relations employer are in, shall not bring "vicarious liability" into the question. For example, the situations of an independent contractor are not the subject of strict liability on the employer's behalf in both laws as contractors are professionals working independently even they undertake the employer's business.

A distinct difference between Turkish law and English law in practice in this matter lies in the issue of employer's directives. Speaking of tort cases based on wrongful modes of doing authorized acts, it can be observed the regulations in Turkish tort law and English tort law are based on completely different considerations. In tort situations where employees do the job they were authorized to do but contrary to the manner in which they have been instructed to do it, in Art 66/2 of TCO, Turkish legislators give immunity to employers if they have taken all due care in the recruitment, business assignment and the supervising.  On the other side, English courts hold employers liable in this type of tort claims. However, in Turkish law, in order to keep benefitting from this immunity, the employer is also required to prove that his work placement has possessed the all adequate equipment to avoid any damage or loss. The main approach adopted by English courts to burden liability to the employer on these kinds of occasions is related to whether the employer has benefitted from the work his employee has done or not. If the employer benefits from the work that his employee has done on his behalf, he can be held vicariously liable in all type of tort situations like this unless the employer has explicitly forbidden his employee to act that particular tortious conduct. On the other side, there is no evaluation based on benefit in Turkish law, in the context of the employer's vicarious liability.


Bibliography

 

Statutes or Statutory Instruments

 

  • Federal Act on the Amendment of the Swiss Civil Code (Part Five: The Code of Obligations) of 30 March 1911
  • Turkish Civil Code. Law N. 4721, dated 7/12/2002. Date Of Acceptance: 22.11.2001
  • Turkish Code of Obligations (Act No. 6098 dated 11.01.2011)
  • The Human Rights Act. 1998
  • The Consumer Protection Act 1987
  • The Torts (Interference with Goods) Act 1977
  • The Occupiers' Liability Act 1957
  • The Law Reform (Contributory Negligence) Act 1945

 

Legislation and Cases

 

  • Donoghue v Stevenson [1932] AC 562, HL
  • Caparo Industries plc v Dickman [1990] UKHL 2
  • Broom v Morgan [1953] 1 QB 597
  • Joel v Morison – 1834
  • 1868 LRCCR 3
  • Storey v Ashton 1869
  • Iqbal v LTE 1973
  • Lister v Romford Ice & Cold Storage Co Ltd [1957] AC 555
  • Whatman v Pearson (1868)
  • Twine v Beans Express 1946
  • Stevenson Jordan and Harrison Ltd v McDonald and Evans (1969)

 

Authored Books

  • Principles of Tort Law Fourth Edition, Vivienne Harpwood, LLB, Barrister
  • Deakin, Johnston and Markesinis Markesinis and Deakin’s Tort Law, Oxford University Press, 5th
  • Essential Tort Law, Richard Owen, LLB, LLM, Solicitor
  • Kemal Oğuzman & Turgut Oz, Borçlar Hukuku Genel Hükümler II - (The Law of Obligations General Provisions II)
  • E. Büyüksagis, Yeni Sosyo-Ekonomik Boyutuyla Maddi Zarar Kavramı [The Concept of Damage in its New Socio-Economic Dimension] (habilitation thesis, Istanbul 2007)
  • Kaneti, Haksız Fiil Sorumlulug˘unda Kusur Kavramının Görevi [The Function of the Notion of Fault in Tort Liability], in: Sorumluluk Hukukunda Yeni Gelişmeler 1. Sempozyumu (Istanbul 1980)
  • F. Eren, Borçlar Hukuku, Genel Hükümler [Law of Obligations, General Provisions]
  • Oftinger; II/I

 

Articles

          

  • E Büyüksagis, The New Turkish Tort Law & Extracts from the New Turkish Code of Obligations, Journal of European Tort Law (JETL) 1/2012, p63.
  • Introduction to English Tort Law - British Institute of International

 

Websites and Blogs

 


[1] It's defined as the "unjust enrichment" instead of  the term "restitution" in Turkish Code of Obligations (Law No. 6098 of January 11, 2011)  in order to refer the situations where one has been unjustly enriched out of another person’s property in particularly without any valid reason, or for a reason which did not materialise, or which subsequently ceased to exist.

[2] Principles of Tort Law Fourth Edition, Vivienne Harpwood, , LLB, Barrister p.5

[3] Deakin, Johnston and Markesinis Markesinis and Deakin’s Tort Law, Oxford University Press, 5th, p99

[4] Principles of Tort Law Fourth Edition, Vivienne Harpwood, , LLB, Barrister p.31

[5] Donoghue v Stevenson [1932] AC 562, HL

[6]  Deakin, Johnston and Markesinis Markesinis and Deakin’s Tort Law, Oxford University Press, 5th, p104

[7] Caparo Industries plc v Dickman [1990] UKHL 2

[8] Essential Tort Law, Richard Owen, LLB, LLM, Solicitor, p31

[9] Essential Tort Law, Richard Owen, LLB, LLM, Solicitor, p40

[10] Turkish Official Gazette (Resmi Gazete) 4 February 2011, no 27836, (last accessed 25 January 2012)

[11] Turkish Code of Obligations (Law No. 6098 of January 11, 2011

[12] M. Kemal Oğuzman & Turgut Oz, The Law of Obligations General Provisions II, p14

[13] E Büyüksagis, Yeni Sosyo-Ekonomik Boyutuyla Maddi Zarar Kavramı [The Concept of Damage in its New Socio-Economic Dimension] (habilitation thesis, Istanbul 2007) no 16 ff.

[14] E Büyüksagis, The New Turkish Tort Law & Extracts from the New Turkish Code of Obligations, Journal of European Tort Law (JETL) 1/2012, p53

[15] Y4.HD, 27. 10. 1989T/3793E/8235K. The chain of adequate causation can be broken by force majeure, the exclusive fault of the injured person, or a third party’s intervention. For further explanations, see F Werro, La responsabilité civile (2nd edn 2011) no 241 ff

[16] M. Kemal Oğuzman & Turgut Oz, The Law of Obligations General Provisions II, p53

[17] Kaneti, Haksız Fiil Sorumlulug˘unda Kusur Kavramının Görevi [The Function of the Notion of Fault in Tort Liability], in: Sorumluluk Hukukunda Yeni Gelis¸meler 1. Sempozyumu (Istanbul 1980) 29, 52 ff. See also S Reisog˘lu, Borçlar Hukuku, Genel Hükümler [Law of Obligations, General Provisions] (20th edn Istanbul 2008) 150; F Eren, Borçlar Hukuku, Genel Hükümler [Law of Obligations, General Provisions] (6th edn Istanbul 1998) 559; K Og˘uzman/T Öz, Borçlar Hukuku, Genel Hükümler [Law of Obligations, General Provisions] (Istanbul 1995) 506; MR Karahasan, Sorumluluk Hukuku [Tort Law] (Istanbul 1995) 161

[18] E Büyüksagis, The New Turkish Tort Law & Extracts from the New Turkish Code of Obligations, Journal of European Tort Law (JETL) 1/2012, p63.

[19] Turkish Civil Code Law N. 4721, dated 7/12/2002 Date Of Acceptance : 22.11.2001

[20] Principles of Tort Law Fourth Edition, Vivienne Harpwood, , LLB, Barrister, chapter 14, p315

[21] Deakin, Johnston and Markesinis Markesinis and Deakin’s Tort Law, Oxford University Press, 5th, p560

[22] Principles of Tort Law Fourth Edition, Vivienne Harpwood, , LLB, Barrister, chapter 14, p345

[23]  [1969] 2 QB 173, p. 184

[24] Essential Tort Law, Richard Owen, LLB, LLM, Solicitor, p66

[25] "Vicarious Liability Lecture." LawTeacher.net. 11 2013. All Answers Ltd. 04 2019 <https://www.lawteacher.net/modules/tort-law/employers-liability/vicarious-liability/lecture.php?vref=1>.

[26] Essential Tort Law, Richard Owen, LLB, LLM, Solicitor, p66

[27] Deakin, Johnston and Markesinis Markesinis and Deakin’s Tort Law, Oxford University Press, 5th, p566

[28] "Vicarious Liability Lecture." LawTeacher. LawTeacher.net, November 2013. Web. 7 April 2019. <https://www.lawteacher.net/modules/tort-law/employers-liability/vicarious-liability/lecture.php?vref=1>.

[29] Principles of Tort Law Fourth Edition, Vivienne Harpwood, , LLB, Barrister, chapter 14, p353

[30] 1868 LRCCR 3 p. 422

[31]  Essential Tort Law, Richard Owen, LLB, LLM, Solicitor, p68

[32] Essential Tort Law, Richard Owen, LLB, LLM, Solicitor, p69

[33] "Joel v Morison – 1834." LawTeacher.net. 11 2013. All Answers Ltd. 04 2019 <https://www.lawteacher.net/cases/joel-v-morison.php?vref=1>.

[34] Teacher, Law. (November 2013). Storey v Ashton – Case Summary. Retrieved from https://www.lawteacher.net/cases/storey-v-ashton.php?vref=1

[35] Principles of Tort Law Fourth Edition, Vivienne Harpwood, , LLB, Barrister, chapter 14, p355

[36] LawTeacher. November 2013. Vicarious Liability Lecture. [online]. Available from: https://www.lawteacher.net/modules/tort-law/employers-liability/vicarious-liability/lecture.php?vref=1 [Accessed 21 April 2019].

[37] JdT 1972 I 368;

[38] Federal Act on the Amendment of the Swiss Civil Code (Part Five: The Code of Obligations)

[39] M. Kemal Oğuzman & Turgut Oz, The Law of Obligations General Provisions II, p144

[40] Erenler, The Law of Obligations,II, p.170

[41] Oftinger; II/I p .132

[42] [42] M. Kemal Oğuzman & Turgut Oz, The Law of Obligations General Provisions II, p146

[43] Oftinger; II/I p .146

[44] The Employer Liability and Dependency Relationship, Gökhan Turhan, Furkan Ergün, part 13, p. 231

[45]  M. Kemal Oğuzman & Turgut Oz, The Law of Obligations General Provisions II, p147

[46]  M. Kemal Oğuzman & Turgut Oz, The Law of Obligations General Provisions II, p150

 

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