121 Union of Turkish Bar Associations Review 2023 Muhammed Enes YILDIZ physical integrity of the employee against workplace hazards.9 In the event that the employee dies, becomes disabled or suffers material or immaterial damage as a result of the failure to take the necessary safety measures, the legal liability of the employer will arise according to the general provisions.10 2. Nature of Legal Liability Arising from Occupational Accidents There is no consensus in the doctrine on the legal nature of the employer’s liability arising from occupational accidents. Again, the opinions of the Court of Cassation on this issue have always varied until recently. In the doctrine, some authors have stated that the employer’s liability arising from occupational accidents is a fault liability, while some authors have stated that no fault is required in the employer’s liability.11 Before the Law No. 6098 entered into force, according to those who advocated the view of fault liability, the main principle in the law of liability is that the liability is based on fault. Liability without fault is a type of liability that may arise only in exceptional cases, if it is clearly stated in the law. Therefore, the employer’s liability arising from an occupational accident should be considered as a fault liability.12 According to the view advocating faultless liability, since there was no regulation regarding the employer’s liability for the duty of care in service contracts during the period of the former Law, the provisions of the Code of Obligations No. 81813 should be applied, but it was stated that the fault-based regulations of this law were not in accordance with the protective nature of labour law. For this reason, it was stated by this opinion that this legal gap should be filled with the provisions on strict liability.14 Again, some of the authors of this opinion relied on the 9 Sarper Süzek, İş Hukuku, Beta Yayınevi, 20. Baskı, Ankara 2020, p. 409; Levent Akın, İş Kazasından Doğan Maddi Tazminat, Yetkin Yayınları, Ankara 2001, p. 46. 10 Nuri Çelik/Nurşen Caniklioğlu/Talat Canbolat/Ercüment Özkaraca, İş Hukuku Dersleri, Beta Yayınevi, Yenilenmiş 34. Bası, İstanbul 2021, p. 434. 11 Çelik/Caniklioğlu/Canbolat/Özkaraca, p. 435 et seq, bkz oradaki yazarlar; Süzek, p. 413 et seq. See the authors there. 12 Yıldız, p. 5 et seq; Akın, p. 97 et seq; Süzek, p. 417 et seq. 13 RG, 29.4.1926, 359. 14 Eren, p. 89 et seq; İlhan Ulusan, Özellikle Borçlar Hukuku ve İş Hukuku Açısından
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