99 Union of Turkish Bar Associations Review 2022 TÜZÜNER / DUYMUŞ / ALGÜL quences such as paralysis, higher non-pecuniary compensation may be awarded as the suffering of the victim is high.81 According to an opinion in the doctrine, the title of the parties and the position they occupy can only be taken into account if it creates an obligation to bear more. The social and economic situation of the parties may constitute the maximum and minimum measure for the obligator of compensation82 The opposing view opposes this calculation method of immaterial compensation. Considering the social and economic status of the plaintiff in determining the moral compensation in the jurisprudence of the Turkish Court of Cassation is a total violation of the principles of social equality and justice.83 In another opinion in the same direction, there is no parallelism between the explanations of the Supreme Court about the function of immaterial compensation and the criteria that it recommends to be taken into account in determining the amount of non-pecuniary damage.84 It is possible to agree with the last two views. The assumption that the severity of pain varies according to the social status and economic situation of the parties is also reflected in the Supreme Court verdicts regarding the legal responsibility of the nurse.85 When it comes to immaterial compensation in the case of the mixing-up of new-borns with the fault of the nurse, the Court of Cassation demands that the social and economic conditions of the parties to be taken into account. In the concrete case, the plaintiff mother breastfed someone else’s baby until she reunited with her real baby. Moreover, until she learned the truth, she had to put up with that her baby was fed by someone else, maybe even starved. The amount of such suffering, if the claimant mother is rich, educated, middle class; if she is poor, uneducated; if she is working class, does it increase or decrease? Or, can the amount of immaterial compensation deserved by the aforementioned mother vary 81 Kürşat, p. 317, fn. 52. 82 Dural/Öğüz, § 806, 807. 83 Gökhan Antalya, “Manevî Zararın Belirlenmesi ve Manevî Tazminatın Hesaplanması-Türk Hukuku’na Manevî Zararın İki Aşamalı Olarak Belirlenmesine İlişkin Bir Model Önerisi”, Marmara Üniversitesi Hukuk Fakültesi Hukuk Araştırmaları Dergisi, 2016, 22/3, Prof. Dr. Cevdet Yavuz’a Armağan, p. 241. Gökhan Antalya/Murat Topuz, Medenî Hukuk (Giriş-Temel Kavramlar-Başlangıç Hükümleri), Vol. 1, Seçkin, İstanbul, 2015, p. 320. 84 Hülya Altan, “Beden Bütünlüğünün İhlâlinde Manevî Tazminat Miktarının Belirlenmesi”, Ankara Üniversitesi Hukuk Fakültesi Dergisi, 2016, 65/4, p. 2667. 85 13th Civil Chamber of the Court of Cassation, 2004/15903, 2005/3133, 2.3.2005. 3rd Civil Chamber of the Court of Cassation, 2020/3289, 2020/5633, 8.10.2020.
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