2019 Ghana 5036489 Damage (ar)

A

Attorney Jeong Sung-sung et al., Counsel for the defendant

B Federations

Law Firm Dongsung, Attorney Park Jae-jin, Counsel for the plaintiff-appellant

December 20, 2019

March 6, 2020

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The defendant shall pay to the plaintiff 95,102,784 won and the amount calculated by the ratio of 5% per annum from April 1, 2014 to the service date of a duplicate of the application form for purport of the claim and modification of the cause of the claim in this case, and 15% per annum from the next day to the day of complete payment.

1. Occurrence of liability for damages;

(a) Facts of recognition;

1) On April 1, 2014, C driven D buses (hereinafter “Defendant Vehicles”) on April 1, 2017:06, and stopped in order to have passengers get off from the bus stops at the bus stops at the F Elementary School Drippersers (hereinafter “the instant accident site”). The Defendant Vehicle, compared to low-floor buses, was located at a large size from the floor, was installed at a large location from the vehicular road, and C stopped the Defendant Vehicle at a certain distance from the sidewalk.

2) From among the passengers of the Defendant vehicle, male passengers who were first lowered from the place of the accident in this case came to run away from the stairs board of the Defendant vehicle. Then, the Plaintiff lowered the vehicle, and the Plaintiff was also unloaded from the engine board of the Defendant vehicle to the left side without the centering.

3) The Defendant’s vehicle, which started immediately after the Plaintiff left the vehicle, was placed on the right side of the Plaintiff’s right side with the rear wheels, and thereby, the Plaintiff suffered injury, such as pressure damage, etc. (hereinafter “the instant traffic accident”).

4) The Defendant, as a mutual aid contractor who entered into a mutual aid agreement with the Defendant vehicle, paid the Plaintiff a total of KRW 91,60,000,010 to the hospital treated by the Plaintiff as medical expenses from August 7, 2014 to June 26, 2015, and KRW 13,60,010 to February 4, 2016.

5) As to the instant accident, the Defendant asserted that there was no fault of the driver of the Defendant, and filed a lawsuit claiming return of unjust enrichment of KRW 91,295,440 paid by the Defendant as the other party to the instant accident (Seoul Central District Court 2015dan520255). In the said lawsuit (hereinafter “related lawsuit”), the Defendant’s liability for the instant accident was recognized to be 30%, and the judgment became final and conclusive with respect to KRW 63,906,808, and KRW 54,386,801 from July 29, 2015, with respect to KRW 9,520,07 from March 30, 2016 to April 22, 2016, and damages for delay calculated with 15% per annum from the next day to the date of full payment.

[Ground of recognition] The fact that there is no dispute, Gap evidence 4, Eul evidence 1 through 3 (including branch numbers; hereinafter the same shall apply) and the purport of whole pleadings

B. Recognition of liability

According to the above facts, the plaintiff, who is the passenger of the defendant vehicle, sustained the injury due to the operation of the defendant vehicle, and as long as the plaintiff intentionally sustained the injury, the defendant, who is the mutual aid business operator, is liable to compensate for the damage suffered by the plaintiff due

The defendant asserts that the accident in this case is caused by the plaintiff's unilateral negligence, and that there is no negligence on the part of the driver of the defendant vehicle. However, considering the following circumstances acknowledged by the above Paragraph 1, the height of the defendant vehicle is high, and the defendant vehicle stops at a place different from the sidewalk and the distance between the sidewalk and the engine board of the defendant vehicle, as well as the passenger who loaded before the plaintiff is running as a little running from the bus board. In such a case, there is a possibility that the vehicle's passengers may go beyond the center of the body near the bus properly. Thus, the driver of the defendant vehicle can prevent the collision due to the bus's progress after checking the fact that the low passenger's body center is proper and stable. Nevertheless, considering the fact that the accident in this case occurred due to the plaintiff's negligence, the defendant's assertion that the accident in this case occurred due to the negligence of the driver of the defendant vehicle is not accepted.

C. Limitation on liability

However, considering that the Plaintiff’s mistake was beyond the wind to lose its center after getting off the Defendant’s vehicle, the Plaintiff’s fault is deemed to have caused an accident, and thus, the Defendant’s liability is limited to 30% by taking this into account in calculating the amount of damages to be paid by the Defendant.

2. Scope of liability for damages

In addition to the following separate statements, each item of the attached table for calculating the amount of damages shall be the same as the corresponding item of the attached table for calculating the amount of damages, and the period for calculating the amount for the convenience of calculation shall be calculated on a monthly basis, but less than the last month and less than the amount shall be discarded. The current value calculation at the time of the accident shall be in accordance with the principle of simple interest deduction at the rate of 5/12 per month. The purport of all the parties' arguments that are not separately explained is to dismiss.

[Ground of recognition] The absence of dispute, entry of Gap's evidence 1, 2, 3, and 7, the results of the commission of physical examination to the president of the G Hospital in this Court and the president of the Seoul National University Hospital, the significant facts, the empirical rule, and the purport of the whole pleadings

(a) Actual income: 40,341,661 won;

1) Personal information: To be stated in the column of “basic information” in the attached Form for calculation of damages.

2) Income and operating period: The Plaintiff, as at the time of the instant accident, was serving as security guards as a male under 73 years of age, and thus, it is deemed that the amount equivalent to the urban daily wage can be obtained as income as an ordinary worker until March 31, 2016, which was 24 months from the date of the instant accident.

(iii)the rate of loss of labour capacity by disability and period;

(a)competence;

(1) Unauthorized foreign affairs (slateral affairs): 25%, permanent disabilities (applicable to Mabrid disability assessment table, slater II-1, occupational coefficient 6).

(2) Emotional work: 14%, and the market sea for seven years from the water surface (applicable to the supplementary work to the lucental Disability Assessment Table II-1-2, and the vocational coefficient 6).

③ In light of all the circumstances, such as the Plaintiff’s gender, age, occupation, etc., 5% of the permanent disability (the loss of labor ability due to drilling may be anticipated in light of the Plaintiff’s gender, age, occupation, etc., but considering the overall circumstances, 15% of the attached Table 2 of the Enforcement Decree of the State Compensation Act, which is based on physical appraisal based on physical appraisal, is deemed to be excessive, since physical appraisal is deemed to have been set forth in Article 12(13) of the State Compensation Act (the remaining person who remains after being concealed in the appearance). Therefore, instead of accepting the result of physical appraisal commissioned by the Chief Hospital of this Court to Seoul National University Hospital, 5% is recognized).

(4) Overlapping disability rate: 38.72%

(B) the loss rate of labor capacity by period;

(1) From April 1, 2014 to December 9, 2015 (the period of hospitalization): 100%.

(2) From December 10, 2015 to March 31, 2016: 38.72%

4) Calculation: The "actual income in the annexed sheet for calculation of damages" is KRW 40,341,661, as stated in the annexed sheet for calculation of damages.

(b) Expenses for medical treatment;

The plaintiff asserts that the sum of KRW 56,822,637, KRW 697,510, and KRW 40,118,860, and KRW 97,639,007 was paid to H Hospital.

However, according to the evidence Eul evidence No. 3, the plaintiff received hospitalization from the above hospital until December 9, 2015, which is the date of discharge according to the defendant's payment guarantee, and the defendant paid 54,982,630 won (=5,270,800 won + 49,711,830 won) to the H hospital as the plaintiff's medical expenses, and 697,510 won to the I Medical Foundation (K Hospital), and 35,615,300 won to the J Medical Foundation (K Hospital). The evidence No. 6 alone does not show that the plaintiff directly paid the medical expenses incurred from the accident in this case to the above hospital, and there is no other evidence to acknowledge it. Thus, the plaintiff's claim for reimbursement of the Wull treatment expenses cannot be accepted.

(c) Future medical expenses: 44,913,088 won;

The cost of KRW 57,640,00,00,00,000,00 for sexual surgery and medical expenses (scamscam type). Since there is no evidence to deem that the Plaintiff spent it by the date of closing argument, it shall be deemed that it was disbursed on December 21, 2019, the day following the date of closing argument of the instant case, and it shall be calculated at the present price at the time of the instant accident.

A person shall be appointed.

(d) Nursing expenses: 5,891,620 won;

Considering the overall circumstances, such as the parts and degree of the Plaintiff’s injury caused by the instant accident, the progress of treatment, the details and necessity of the care, etc., it is deemed that the care by an urban adult female during 8 hours a day of 10 weeks from the date of the instant accident was necessary. The detailed details are as follows.

A person shall be appointed.

(e) Assistants, etc.: 1,240,000 won (=150,000 won for artificial limbs aids + 1,090,000 won for transport treatment);

(f) Limitation of liability: 30% of the defendant's liability ratio (see the above 1.C.)

G. Deduction (Offset): The defendant asserts that the whole amount of the damages of this case should be deducted from the total amount of the damages of this case as to the claim amount of 63,906,808 won (this is the same as the claim amount of 91,295,440 won paid by the defendant, which corresponds to the ratio of the plaintiff's fault) based on the final judgment of the related lawsuit. As such, the remaining amount after deduction shall be additionally deducted from the consolation money as shown in the annexed sheet of damages calculation.

(h) Consolation money;

1) Reasons for taking into account: Circumstances revealed in the pleadings of the instant case, such as the background of the instant accident, the Plaintiff’s age, degree of negligence by the Plaintiff, degree and degree of the disability attributable to the latter, and the duration of hospitalization.

(ii) Amount recognized: 17,000,000 won;

I. Sub-committee

-19,190,898 won (=property damages -36,190,898 won + 17,000,000 won)

3. Conclusion

Thus, the plaintiff's claim is no longer reasonable because the plaintiff's claim remains more than the amount of damages to the defendant. Therefore, it is dismissed and it is so decided as per Disposition.

Judges Kim Jong-young

A person shall be appointed.