Liability of Subcontractor and Principal Employer for Work Accidents

In the decision of the Court of Cassation below, a reversal decision was given in terms of obtaining a fault report after the determination of the principal and subcontractor status of the defendant and non-suiting companies. It is also emphasised in the decision that the civil judge is bound by the material fact in the finalised criminal court decision.

10th Civil Chamber of the Court of Cassation, E. 2022/8341 K. 2023/6953 T. 15.6.2023

COURT : … Regional Court of Appeal 5th Civil Chamber

NUMBER : 2021/2731 E., 2022/1153 K.

DECISION : Partially accepted

COURT OF FIRST INSTANCE : … 10th Labour Court

NUMBER : 2016/804 E., 2021/262 K.

At the end of the trial between the parties for the material and moral compensation case of the insured who suffered permanent incapacity due to an occupational accident, the Court of First Instance decided to partially accept the case.

Upon the appeal of the decision by the attorneys of the parties, the Regional Court of Justice rejected the appeal applications of the defendants’ attorneys on the merits, and with the acceptance of the appeal application of the plaintiff’s attorney, it was decided to partially accept the case by lifting the decision of the first instance court.

The decision of the Regional Court of Appeal was appealed by the attorneys of the defendants, and as a result of the preliminary examination made in terms of finality, duration, appeal requirement and other procedural deficiencies, after it was decided to accept the petition for appeal and the report prepared by the Examining Judge … was listened to, the documents in the file were examined and considered accordingly:

I. LAWSUIT

1. The plaintiff’s attorney stated in the petition of lawsuit that the main employer is Akdeniz Elektrik Üretim A.Ş., the plaintiff worked as a Scada automation installer at Enertest Enerji…Şti., on 20.11.2015 at 00:30-01:00, he was injured as a result of electric shock while working at … He was injured as a result of electric shock while working at Muratpaşa Konserve Substation, the defendant …Ş.Şti., a group of workers, including the client, came to the work area, and when they started the preparations, the construction site authorities started to cut the electricity of the transformers to be installed and maintained by the construction site authorities, The workers were informed that the doors of the transformers whose electricity was cut off would be left open, then the workers were informed that the electricity was cut off in the transformers and that they could start work, the plaintiff entered one of the sections whose door was open and whose electricity was cut off and started repairs, he was severely injured by being electrocuted when he started repairs, his treatment is still continuing, … C. Chief Public Prosecutor’s Office, that there is a principal employer-subcontractor relationship between the defendants, and requested the collection of 1.000,00 TL pecuniary compensation and 100.000,00 TL non-pecuniary compensation from the defendants together with the legal interest to be accrued as of 21.11.2015, the date of the accident, on the condition that the rights regarding the excess are reserved.

2. The plaintiff’s attorney increased the amount of pecuniary compensation as 475.199,03.-TL with the petition for increase in the amount and requested a decision to collect the pecuniary compensation in this amount from the defendants together with the legal interest to be accrued from the date of the accident.

II. ANSWER

1. The defendant Enertest…Şti. attorney stated that the plaintiff completed his medical report on 07.03.2016, 4.5 months after the date of the work accident, and started working again in the client company, and 3 months later, on 12.06.2016, he resigned voluntarily, declaring that he would work in another workplace, that his client was not at fault, that although the employees of the other defendant .Although the employees of the other defendant …Ş. warned the plaintiff and other employees that the electric current was not cut off in the cell and that they should not enter that cell, the plaintiff entered the energised cell without informing or asking anyone, that it is the duty of Akdeniz Elektrik Dağıtım A.Ş., that there were relevant personnel of Akdeniz Elektrik Dağıtım A.Ş. at the scene during the accident, that his client had the “Electrical and Electronics Technology Field / High Voltage Systems Programme in Hazardous and Very Hazardous Works” training, that the company had the personnel receive occupational safety training, have them undergo health checks and deliver personal protective equipment, and requested the dismissal of the lawsuit.

2.The attorney of the defendant ……Şti. stated that his client signed a service contract with Elmak Enerji …Şti. on 09.03.2015 to make the existing infrastructure in 168 IM-TM-DM-KÖK Centres in …, Burdur and … provinces compatible with SCADA (Central Supervisory Control and Data Acquisition System). According to Article 21 of the contract, the contractor is obliged to keep the technical personnel in the specified number and characteristics at the workplace continuously from the date of commencement of the work, if subcontractors are employed, the provisions specified for the contractor in this contract are also valid for the subcontractors, an Occupational Health and Safety / Environmental Supplementary Agreement was signed between his client and the contractor, the plaintiff is the employee of the subcontractor, The plaintiff claimed that his client would not be liable for the work accident in accordance with the contract, that the contractor and the subcontractor defendant company were jointly and severally liable for occupational health and safety, that the work accident occurred due to the plaintiff’s own gross negligence and negligence, that the plaintiff was given occupational health and safety training, was given personal protective equipment, received the necessary training, and that his client was not at fault and requested the dismissal of the lawsuit.

III. FIRST INSTANCE COURT JUDGEMENT

With the decision of the Court of First Instance dated and numbered above, it was stated that the plaintiff suffered 25.0% disability due to the accident, that while the plaintiff was working as an electrician in the defendant Enertest Company, at around 01.00 at night, while working in the Konserve Lowering Centre operated by Akdeniz Elektrik Dağıtım A.Ş., when he entered the feeder 12 cell, the input disconnector contacts of this cell at the bottom of this cell could not be opened and were in the closed position, while working in the cell, the cell was energised in the opposite direction.While working at the Konserve Downloader Centre operated by Akdeniz Elektrik Dağıtım A.Ş. at around 01.00 at night, when he entered the feeder 12 cell, the input disconnector contacts at the bottom of this cell were in the closed position because they could not be opened, while working in the cell, the cell was energised in the reverse direction and burned as a result of electric arc flames due to being close to the input disconnector, and he had an occupational accident on 20/11/2015, … Social Security Provincial Directorate, Muratpaşa Social Security Centre’s 16/02/2017-309 Decision date numbered 16/02/2017-309 Decision date of the Institutional Health Board Decision Regarding the Determination of the Rate of Loss of Earning Capacity in the Occupation, it was reported that he was 27.2% disability, according to the High Health Board report, he had 25% disability, according to the 3rd Forensic Medicine Specialised Board report, he had 25.0% disability, in the SSI investigation report, the plaintiff was flawless, the defendant Enertest.Şti. is 50% and the defendant AEDAŞ is 50% at fault, in the fault reports received by the court and overlapping with each other, the plaintiff is 10%, the defendant Enertest…Şti. is 50% and the defendant AEDAŞ is 40% at fault, in the fault committee report dated 25.03.2019, the plaintiff is 10%, the defendant Enertest…Şti. is 50% and the defendant AEDAŞ is 40% at fault,

1. The lawsuit was partially accepted and it was decided to collect the compensation of 425.199,03 TL pecuniary and 60.000,00 TL non-pecuniary damages from the defendants jointly and severally together with the legal interest to be accrued as of 20.11.2015, the date of the accident.

IV. EXCUSSION

A. Appellants

The attorneys of the parties filed an appeal against the above-mentioned decision of the Court of First Instance within the prescribed period.

B. Grounds for Appeal

1. In the petition for appeal, the plaintiff’s attorney stated that the court, taking into account the TurkStat data, determined that the plaintiff’s income as of the date of the accident was 1.9122 times the monthly minimum wage and took this wage as the basis, and that in the expert additional report dated 01.02.2021 received upon objection, the plaintiff’s net wage excluding AGI was calculated as 2.909,89 TL, i.e. 3,19 times the minimum wage, an increase was made according to the supplementary report, and the court took the root report as basis, in the response to the request sent to the file by Enerji-Sen, it was stated that the response was given for two different possibilities by making a distinction between unionised and non-unionised workers, and that the non-unionised worker could receive 2.950,00 TL-3.250,00 TL, the Chamber of Electrical Technicians, which is not a trade union, stated that it could be “between 1-3 times the minimum wage”, according to the bank records, on 03.11.2015 “salary … with the explanation of 1.000,00 TL”, on 04.11.2015 “harun yavuz-…” (company official) with the explanation of 2.090,00 TL, on 3.12.2015 “salary … with the explanation of” 500,00 TL, and again on 11.12.2015 with the explanation of “salary …” 1.500,00 TL payment was made, that his client’s work requires special expertise, is very dangerous, TÜİK data cannot be taken as a basis, that a decision should be made in line with the price increase petition dated 09.02.2021, that the non-pecuniary compensation is low, that the plaintiff has undergone multiple surgeries and cannot move for a long time, and requested the decision to be lifted.

2.The defendant ……Şti. In his petition for appeal, the attorney stated that there was no principal employer-subcontractor relationship between his client and the other defendant, that his client organised a tender to carry out SCADA infrastructure adaptation works, that he signed a service contract with Elmak Enerji, which won the tender, and that this company undertook to perform the service through its own workers under the contract, that our client does not employ its own workers, that it does not have the title of the main employer, that the contractor undertakes to take all kinds of measures related to occupational health and safety, to be responsible for the follow-up of the work, responsibility and measures to be taken in all kinds of work to be carried out in the field, and that the plaintiff is the employee of the subcontractor, that his client was not responsible, that the plaintiff was grossly negligent in the incident, that the entire team was warned that they should not work in the cell to be worked until the power from the Meydan Downloading Centre was cut off, and that it was determined that this failure occurred due to the load transfer made by TEİAŞ without informing the client company, the plaintiff was given occupational health and safety training, personal protective equipment was embezzled, he signed the occupational safety instruction and undertaking, his client was not at fault, all calculations were exorbitant, the non-pecuniary damages were exorbitant.

3.In his petition of appeal, the attorney of the defendant Enertest….Şti. stated that their objections to the expert report were not taken into consideration, that the other defendant …Ş. was responsible for the task of cutting and controlling the energy, that the electric current was not cut off in the cell and that although the plaintiff and other employees were warned by Akdeniz Elektrik Dağıtım A.Ş. employees that the electric current was not cut off in the cell and that they should not enter that cell, the plaintiff entered the energised cell without informing or asking anyone, that all the fault belongs to the plaintiff, that the Electricity Distribution Centre where the accident occurred belongs to Akdeniz Elektrik Dağıtım A.Ş., that it is the duty of Akdeniz Elektrik Dağıtım A.Ş. to cut and deliver energy, to cut the energy of the cells to be worked on and to deliver them safely, that partial payments were made to the plaintiff after the accident, that the plaintiff was paid partial payments after the accident.Ş., it is the duty of Akdeniz Elektrik Dağıtım A.Ş. to cut and deliver energy, to cut the energy of the cells to be worked on and to deliver them safely, that partial payments were made to the plaintiff after the accident, that his client was not at fault, that all calculations and non-pecuniary damages were exorbitant, that they objected to all the adverse matters written in the expert reports, that they objected to the forensic medicine report, that the calculations in the account report were not suitable for inspection, that all fault reports and disability reports were contrary to the law and procedure, and requested the decision to be removed.

C. Justification and Conclusion

With the decision of the Regional Court of Justice dated and numbered above, “… The defendant …… Şti. gave the work of making the infrastructure of the existing facilities in Burdur-…-… compatible with the scada to the non-suit Elmak Enerji…Şti. with the contract dated 09.03.2015, Elmak Enerji…Şti. gave some of the work to the defendant Enertest.Şti. and the plaintiff worked as an employee of Enertest…Şti., the contracts between the defendants and the defendant Elmak Enerji…Şti. were not sent, the defendant ……Şti. accepted the relationship between them and the defendant Elmak Enerji…Şti. HD.’s decision numbered 2019/5948 Esas, 2020/1722 Karar, it has been finalised that there is a principal employer-subcontractor relationship between the defendant ……Şti. and the defendant Elmak Enerji…Şti., the defendant Enertest…Şti. is also the subcontractor of the defendant Elmak Enerji…Şti., in fact, the defendant ……Şti.was present at the workplace as the chief technician during the incident and worked together with the plaintiff and other subcontractor workers, therefore, the defendants are jointly and severally liable for the plaintiff’s claims, and the objection of hostility is not appropriate.

The claimant was injured on 20.11.2015 at 00:30-01:00 at the … Muratpaşa Konserve Transformer Centre on 20.11.2015 at 00:30-01:00, the claimant was injured as a result of electric shock while working at the Muratpaşa Konserve Transformer Centre, according to the report of the Muratpaşa SSI, he was 27,2% disabled, after the objection to this report, the disability was determined as 25% by the Higher Health Board of Social Insurance, after the objection to the decision of this board, the same rate was determined by the 3rd Specialised Board of the Forensic Medicine Institution, and since there is no contradiction between the reports of the Specialised Board of the YSK and ATK, it is understood that it is appropriate to accept the disability rate as 25%.

In the report prepared as a result of the SSI investigation due to the incident, it was stated that the plaintiff was flawless, the defendant ……Şti.was 50%, the defendant Enertest…Şti.was 50% at fault, in the fault reports dated 26/11/2018 and 25/03/2019, it was determined that the plaintiff was 10%, the defendant ……Şti.was 40%, the defendant Enertest…Şti.was 50% at fault, and it was understood that the fault distribution taken as basis by the court was in accordance with the occurrence and the scope of the file.

In the plaintiff’s petition, the plaintiff claimed that his wage was net 3.000,00 TL, precedent wage research was made in the file, Enerjisen reported the wages of unionised and non-unionised workers separately (non-unionised worker’s wage for 2015 is between 2.950,00-3.250,00 TL), considering the wages reported from the chambers, bank records and the fact that the plaintiff is a qualified worker, it was understood that the acceptance of his wage as net 3.000,00 TL would be in accordance with the scope of the file, and the additional report prepared according to this wage was taken as basis.

…

Considering the date of the incident, the disability rate of the plaintiff, the nature of the incident, the fault status, the economic situation of the parties, and the fact that the plaintiff was hospitalised for 14 months for burn treatment, the amount of non-pecuniary damages was considered reasonable.

Although it was stated by the defendant that payments were made to the plaintiff after the incident, it was understood that no evidence was presented.

As a result, the appeal applications of the defendants Akdeniz Elektrik…Şti. and Enertest…Şti. should be rejected and the plaintiff’s appeal application should be accepted…”, the appeal applications of the attorneys of the defendants should be rejected on the merits, and the appeal application of the plaintiff’s attorney should be accepted and the decision of the court of first instance should be cancelled and the case should be partially accepted,

1. Acceptance of the plaintiff’s claim for pecuniary compensation and awarding the plaintiff the pecuniary compensation of 475.199,03 TL together with the legal interest to be accrued as of 20.11.2015, the date of the accident, jointly and severally from the defendants,

2. With the partial acceptance of the plaintiff’s lawsuit regarding non-pecuniary damages, it was decided to jointly and severally receive the non-pecuniary damages of 60.000,00 TL from the defendants together with the legal interest to be processed as of 20.11.2015, the date of the accident, and to give it to the plaintiff, and to reject the claim for the excess.

V. APPEAL

A. Appellants

Against the above-mentioned decision of the Regional Court of Appeal, the defendant Enertest…Şti. and the defendant ……Şti. have requested an appeal.

B. Grounds of Appeal

1.The counsel for the defendant Enertest…Şti. requested the reversal of the decision on appeal by repeating the contents of the petition of appeal.

2.The defendant ……Şti. attorney repeated the contents of the petition of appeal and requested the decision to be reversed on appeal.

C. Justification

1. Dispute and Legal Characterisation

The dispute is related to the financial compensation claim of the insured who suffered permanent incapacity in an occupational accident.

2. Relevant Law

1. First paragraph of Article 369 and Articles 370 and 371 of the Code of Civil Procedure No. 6100,

2. Article 417 of the Turkish Code of Obligations No. 6098, Articles 13, 16, 18 of the Law No. 5510 and Article 4 of the Occupational Health and Safety Law No. 6331.

3. Evaluation

1. While it is the clear command of Article 77 of the Labour Law No. 4857 that the employer is obliged to do what is necessary to ensure the health and occupational safety of the workers in the workplace and to provide the necessary conditions and to keep the tools in full, Article 77 and some other articles of the Law No. 4857 were repealed by Article 37 of the Occupational Health and Safety Law No. 6331 published in the Official Gazette dated 30.With the Article 37 of the Occupational Health and Safety Law No. 6331 published in the Official Gazette dated 30.06.2012 and numbered 28339, it was repealed to enter into force on 01.01.2013, and the Occupational Health and Safety Law No. 6331 regulated the employer’s obligation to take health and safety measures in more detail.

2. Accordingly, in Article 4 of the Law No. 6331 titled “General Obligation of the Employer”

“The employer is obliged to ensure the occupational health and safety of employees and within this framework;

a) It carries out studies to prevent occupational risks, to take all kinds of measures including training and information, to organise, to provide the necessary tools and equipment, to adapt health and safety measures to changing conditions and to improve the current situation.

b) Monitors and inspects whether the occupational health and safety measures taken at the workplace are complied with and ensures that non-conformities are eliminated.

c) Carries out risk assessment and has it carried out.

ç) When assigning tasks to the employee, it takes into account the employee’s suitability for the job in terms of health and safety.

d) Take the necessary measures to prevent employees other than those who have been given adequate information and instructions from entering places where there is a vital and special danger.”

Article 5 of the same Law regulates the principles of risk protection. According to this article, “The following principles are taken into consideration in the fulfilment of the employer’s obligations:

a) Avoiding risks,

b) To analyse the risks that cannot be avoided,

c) To combat risks at the source,

ç) To take care in the design of workplaces and the selection of work equipment, working style and production methods in order to make the work suitable for people, especially to prevent the negative effects of monotonous work and production tempo on health and safety, and to minimise them if they cannot be prevented,

d) To adapt to technical developments,

e) Replacing the hazardous with non-hazardous or less hazardous,

f) Develop a consistent and general prevention policy covering the effects of factors related to technology, work organisation, working conditions, social relations and the working environment,

g) To prioritise collective protection measures over personal protection measures,

ğ) To give appropriate instructions to employees.”

3. As can be seen, the general framework of the employer’s obligation to ensure the health and safety of employees is set out in Article 4 of the Occupational Health and Safety Law No. 6331. Within this framework, after stating that the employer is “obliged to ensure the occupational health and safety of employees”, certain principles to be fulfilled and complied with are included. Similarly, Article 5 sets out the principles to be followed by the employer during the protection to be provided by the aforementioned obligation. In Article 10, while ensuring health and safety in the workplace, the issues that the employer is obliged to take into account in the risk assessment work to be carried out by the employer are determined (Decision of the General Assembly of Civil Chambers dated 09.10.2013 and numbered 2013/21-102 Esas 2013/1456)

4. Articles 4 and 5 of the Occupational Health and Safety Law No. 6331 and the provisions of the occupational safety regulations issued in accordance therewith should be considered as criteria that objectify the employer’s liability. For this reason, failure to comply with the technical occupational safety rules in the legislation should be considered as the employer’s misconduct. However, the employer should be considered negligent not only when he acts contrary to the aforementioned written rules, but also when he acts contrary to the unwritten measures required by technology.

5. On the other hand, although objectivised fault brings fault liability closer to strict liability, it does not transform it into strict liability. Because, even in this case, the existence of fault is a prerequisite for the employer’s liability. In addition to the criterion of objectification of fault, the interpretation of Article 417/2 of the Turkish Code of Obligations within the scope of the provisions of the Constitution and Article 4 of the Occupational Health and Safety Law No. 6331 will expand the employer’s liability considerably.

5. In line with the above-mentioned explanations; the situation that will save the employer from liability due to the damaging event consists of proving that the appropriate causal link between the negligence in the field of occupational health and safety and the damage occurred has been severed. As stated in the decision of the General Assembly of Civil Chambers dated 20.03.2013 and numbered 2012/21-1121 E. 2013/386, the appropriate causal link can be severed in three cases. These are force majeure, fault of the injured party and fault of the third party. In the presence of one of these situations, it is not possible to go to the responsibility of the employer.

6. In compensation cases based on the legal cause of work accident, it is clear that the way the event occurred should be revealed away from all kinds of doubts by taking into account the evidence presented by the parties and the fault ratios should be determined in accordance with this event.

7. Pursuant to Article 74 of the Code of Obligations (Article 53 of the Code of Obligations No. 818), the civil judge is bound by the material facts in the finalised criminal court judgement. The criminal court has wider powers in determining the existence of the material facts on which the judgement is based due to its unique procedural possibilities. For this reason, it is both a principle that the civil judge will be bound by the criminal judge’s acceptance of the material fact that establishes the unlawfulness of the act and the causal link, and by the criminal court’s acceptance of the way in which the event occurred, in other words, by a final judgement of conviction or acquittal that establishes the material fact (Prof. Dr. Kemal Gözler, “On the Turkish version of Res Judicata”, … University Law Faculty Journal, Vol. 56, No. 2, 2007, pp.45-61) and it has been adopted by well-established jurisprudence

8.According to the information and statements in the file, the defendant … Üretim A.Ş. awarded the contract dated 09.03.2015 to the defendant Elmak Enerji Yat.A.Ş. to make the infrastructure in 168 substations it operates compatible with the central supervision control and data collection system called SCADA, and the defendant Elmak Enerji Yatırım İnşaat San.Tic. A.Ş., the other defendant, the employer of the plaintiff, Enertest Enerji Test. Kont. A.Ş., the employer of the plaintiff, to carry out the work undertaken by the other defendant, the plaintiff, but it is understood that these contract samples are not available in the file.

9. The Court has ruled that the defendants have not been liable among themselves and the non-suit Elmak Elmak Enerji Yatırım İnşaat San.Tic. A.Ş. The court should determine whether there is a principal employer-subcontractor relationship between them by examining the legal relationship between the defendants and the non-suit Elmak Elmak Enerji Yatırım İnşaat San.Tic. A.Ş. by taking all contract samples into the file, and the file should be referred to a 3-person committee to be formed from Class A Occupational Safety Experts who are experts in the field where the work accident occurred in order to determine the fault rates and affiliations of the parties, The fault rates to be determined and the information and documents in the file should be evaluated as a whole and a decision should be made about the responsibilities of the defendants, at the same time, in the trial to be held after the reversal, within the scope of the procedural vested right in favour of the defendant party due to the fact that the plaintiff has not appealed the decision, especially in the calculation of the pecuniary compensation, after applying the fault rate to be determined to the calculation report dated 01.02.2021 dated calculation report, which is taken as the basis for the calculation of the pecuniary compensation, the defect rate to be determined should be applied to the calculation report dated 01.02.2021, and a judgement should be established by taking care not to advance the date taken as the date of the (known) circuit date in this report.

10. Therefore, the decision of the Regional Court of Appeal, without considering these material and legal facts, is contrary to the procedure and the law, and the judgement rendered should be reversed without examining the other aspects of the appellate objections.

VI. DECISION

For the reasons explained,

The decision of the Regional Court of Appeal is hereby reversed,

The advance appeal decision fee shall be refunded to the appellants upon request,

It was unanimously decided on 15.06.2023 to send the file to the Regional Court of Appeals which made the decision.

This content has been automatically translated into English from the Turkish original.