124 Cases of Joint Liability Arising from Occupational Accidents b. Cases Where Fault is Not Required in Liability The rule in the employer’s liability arising from occupational accidents is fault liability. However, in some cases, the legislator has included strict liability regulations against the employer. Pursuant to article 71 of the TBK, the owner and operator shall be liable in the event of damage arising from the operation of an enterprise that “poses a significant danger”. Although strict liability is not explicitly mentioned in the article, it is accepted that there is a state of strict liability from the purpose and arrangement of the provision.24 In the event of an occupational accident occurring in a workplace that falls within the scope of the provision on hazard liability, the employer shall not be liable for any fault of the employer, and shall be liable for the occupational accident in accordance with the provisions on strict liability. In order for the liability to arise, it will be sufficient to establish a causal link between the typical hazard of the enterprise and the damage.25 In addition to the hazard liability, the Law also provides for the liability of the employer for the acts of his employees (art. 66) and the liability for the acts of the auxiliary persons (Art. 116). In these cases, which are, by their nature, a form of strict liability, the injured party may apply for the strict liability of the employer.26 If the employer has left the taking of occupational health and safety measures at the workplace to the auxiliary persons, the employer will be liable for the acts of the auxiliary persons even if the employer is not at fault.27 Again, according to the Highway Traffic Law No. 291828, it is also possible for the employer to be held strictly liable.29 24 Gaye Baycık, “Çalışanların İş Sağlığı ve Güvenliğine İlişkin Haklarında Yeni Düzenlemeler, Ankara Barosu Dergisi”, 2013/3, p. 132; Çelik/Caniklioğlu/Canbolat/Özkaraca, p. 440; M. Kemal Oğuzman/Turgut Öz, Borçlar Hukuku Genel Hükümler, Vol. 2, 11. Bası, İstanbul 2014, p. 191 et seq.; Eren, Genel, p. 760 et seq. 25 Baycık, p. 134. 26 Caniklioğlu, p. 69. 27 Oğuzman, p. 340. 28 RG, 18.10.1983, 18195. 29 Ayrıntılı bilgi için bkz. Çelik/Caniklioğlu/Canbolat/Özkaraca, p. 442; Çelik Ahmet Çelik, Trafik – İş Kazaları, Seçkin Yayınevi, Ankara 2019, p. 17 et seq; Yarg. 21. HD, 18.10.2016, E. 2015/17528, K. 2016/12750, (www.lexpera.com, AD. 27.01.2022).
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