Evaluation method where there is a difference in the rate of loss of labor ability depending on whether medical aids are worn or not;

In order to calculate the lost income due to illegal acts, if there is a difference in the victim's labor disability loss rate depending on the wearing of medical aids, it is reasonable to assess the labor disability loss rate based on the condition of wearing such medical aids, barring any special circumstances.

Articles 393 and 763 of the Civil Act

[Judgment of the court below]

Defendant (Law Firm Dongdong General Law Office, Attorneys Kim Yong-l et al., Counsel for the defendant-appellant)

Busan District Court Decision 95Na15558 delivered on May 16, 1996

Of the part against the defendant as to lost income of the court below, the part ordering the payment of 9,511,835 won and damages for delay thereof shall be reversed, and this part of the case shall be remanded to the Busan District Court Panel Division. The appeal as to the part concerning the defendant's opening expenses shall be dismissed. The costs of appeal as to the dismissal of appeal shall be borne by the defendant.

1. The court below acknowledged the fact that the plaintiff was hospitalized in the Busan ○ Hospital from June 7, 1993 to December 31, 1994 due to the accident in this case, and the plaintiff's wife opened the plaintiff for 208 days during the above period, and determined that the plaintiff suffered damages equivalent to the nursing expenses calculated on the basis of the daily wage of the ordinary part. The decision of the court below is proper, and there is no error in the misapprehension of legal principles as to nursing expenses, as alleged in the grounds of appeal. The grounds of appeal on this point are not acceptable.

2. In order to calculate lost income due to tort, the determination of the loss rate of labor ability shall be based on the detailed degree of the victim's legacy, the impact of the victim's emotional and physical activities on the victim's mental and physical activities, the victim's age, degree of education, the nature of occupation, the degree of skill training and skills, the possibility of occupational change into similar occupation or other occupation, the possibility of occupational change into similar occupation and other social and economic conditions, and the determination of the loss rate of labor ability based on the victim's condition of wearing medical aids, barring any special circumstance.

In this case, as a household manufacturer who was 41 years old at the time of the closing of argument in the lower court, the Plaintiff lost 26% of his work ability as a household manufacturer without wearing hearing aids due to partial damage to hearing ability due to the aftermath of the instant accident. If he wears hearing aids, his work ability expected to be lost by the Plaintiff is 7% per cent, and in this case, the work ability expected to be lost by the Plaintiff is more than 7% per cent. In this case, even if there are some inconvenience due to the wearing of hearing aids, if there are no adverse effects, or interference with daily life and social activities, the Plaintiff’s daily income due to the instant accident should be calculated on the basis of the labor ability loss rate assessed by him on the assumption that he should wear a hearing aid.

Nevertheless, the court below erred by misapprehending the legal principles as to the assessment of the loss rate of labor ability in calculating the plaintiff's lost income due to the accident in this case based on the loss rate of labor ability without wearing hearing aids, and it is obvious that such illegality affected the conclusion of the judgment. Therefore, the ground of appeal pointing this out is with merit.

3. Meanwhile, according to the petition of appeal filed by the Defendant, the Defendant is dissatisfied with the part exceeding KRW 40,00,00 out of KRW 52,157,595 as cited by the lower court as a result of the appeal of this case ( KRW 52,157,595,40,000,00 =12,157,595), and damages for delay on the part above, and the specific scope of the appeal is about KRW 9,51,835, which is part of the lost income, and KRW 2,645,760, which is the entire damages for nursing expenses.

Therefore, among the part against the defendant as to lost income of the court below, the part ordering the payment of 9,511,835 won and damages for delay, which are the scope of the defendant's objection, shall be reversed, and this part of the case shall be remanded to the court below. The appeal as to the part concerning the defendant's opening expenses shall be dismissed, and the costs of appeal as to the dismissal of appeal shall be borne by the losing party.

Justices Lee Don-hee (Presiding Justice)