Plaintiff 1

Inasmuch as Plaintiff 2 is a minor, Plaintiff 1 who is a person with parental authority parent (Attorney No.S.)

Samsung Fire and Marine Insurance Co., Ltd. (Law Firm Han, Attorneys Kim Yong-nam, Counsel for defendant-appellant)

November 27, 2014

Suwon District Court Decision 2009Da30334 Decided August 14, 2012

1. The part against Plaintiff 1 in the judgment of the first instance, including the claim of Plaintiff 1 added in the trial, shall be modified as follows:

A. The Defendant shall pay to Plaintiff 1 the amount of KRW 201,454,116 and the amount of KRW 20,000 among them from August 22, 2007 to August 14, 2012; KRW 181,454,116 each year until January 8, 2015; and KRW 5% each year from the following day to the date of full payment.

B. The plaintiff 1's remaining claims are dismissed.

2. The defendant's appeal against the plaintiff 2 is dismissed.

3. Of the total litigation costs, the part arising between the plaintiff 1 and the defendant shall be four minutes, and the remainder shall be borne by the plaintiff 1, and the defendant's appeal against the plaintiff 2 shall be borne by the defendant.

4. Paragraph 1(a) of this Article may be provisionally executed.

1. Purport of claim

The defendant shall pay 838,798,209 won to the plaintiff 1, 5,00,000 won to the plaintiff 2, and 5,000 won with 5% per annum from August 22, 2007 to the service date of a copy of the application for modification of the purport of the claim of this case and the cause of the claim of this case, and 20% per annum from the next day to the day of full payment.

2. Purport of appeal

A. Plaintiff 1

Of the judgment of the court of first instance, the part against the plaintiff ordering additional payment shall be revoked. The defendant shall pay to the plaintiff 1 214,043,881 won and the amount calculated by the ratio of 5% per annum from August 22, 2007 to the service date of a copy of the application for modification of the purport of the claim of this case and the cause of the claim of this case, and 20% per annum from the next day to the day of full payment (the plaintiff 1 added to the plaintiff 1's claim for consolation money from the trial to the day of full payment).

B. Defendant

The part of the judgment of the court of first instance against the defendant shall be revoked, and the plaintiffs' claims corresponding to the revoked part shall be dismissed.

1. Determination as to the occurrence of liability for damages and lost income within the scope of liability for damages

With respect to this part of this Court's reasoning, the following grounds are added to the fact that the plaintiff 1 actually suffered from the CRPS due to the accident in this case, the "non-insurance vehicle" in the 2nd 15th 2nd 2nd 15th 2nd 2nd 2nd 2nd 2nd 2nd 2nd 2nd 10th 5th 5th 10th 5th 5th 16th 5th 16th 5th 16th 1st 2nd 2nd 2nd 2nd 2nd 2nd 200, and the "the defendant's 5th 16th 5th 16th 5th 16th 2nd 2nd 3th 2nd 6th 1st 2nd 6th 1st 2nd 2nd 2nd 2nd 200th 3rd 2nd 2nd 2nd 3rd 200

[Supplementary Parts]

The result of the judgment of the court of the first instance is based on the objective results of the examination, such as physical pain test and non-name test of Plaintiff 1’s subjective pain test as well as physical pain test of Plaintiff 1. The diagnosis of Non-Party 2 at △△△△△△ University Hospital Hospital’s doctor, Non-Party 3, Non-Party 4, and Non-Party 5’s opinion, etc. are supported by the medical records, etc., the symptoms and the progress and degree of development of the disease indicated in the medical records, etc., Plaintiff 1 visited the hospital immediately following the accident of this case to appeal for severe pain and receive hospitalized treatment, etc. In this case, it is difficult to view that the modified CRPS test criteria for the purpose of the study of the ISP in this case would be unreasonable to apply to Plaintiff 1, and it is difficult to view that the CPS patient would not feel abnormal pain, nor would it be hard to deem that the result of the examination of Plaintiff 1’s daily accident and the result of the examination of the accident of this case.

[Supplementary Use]

“(C) Limitation of liability (the same shall also apply to expenses for pre-treatment and future treatment).

Where damage occurs or has been expanded by competition between harmful acts and the causes of the victim, even if the factors of the victim are irrelevant to the causes attributable to the victim, such as the risk of physical talent or disease, in light of the form, degree, etc. of the disease, the court may apply the legal principle of comparative negligence to determine the amount of compensation, and take into account the factors of the victim who contributed to the occurrence or expansion of the damage (see, e.g., Supreme Court Decision 2009Da85922, Feb. 11, 2010).

In light of the above legal principles, the following circumstances revealed in the health stand, evidence, and oral argument as to the instant case, namely, ① the instant accident is an accident to the extent that the part between the parties was damaged due to vehicle drilling, and on August 23, 2007, the following day of the accident, Plaintiff 1 himself stated that “the Plaintiff was punished on the day of the accident” to the doctor on August 23, 2007, the following day of the accident, and the intention of Plaintiff 1 provided medical treatment was a relatively minor accident to the extent of diagnosis (the result of inquiry about the members of the court in the first instance) as “the degree of satise satise satise sate sate sate sate sate sate sate sate sate sate sate sate sate sate sate sate sate sate sate sat.

Taking into account all the circumstances revealed in the pleadings, such as the background and degree of the instant accident, the treatment progress and degree of damage, Plaintiff 1’s injury, Plaintiff 1’s injury and treatment details prior to the instant accident, and the medical knowledge and limit of treatment with respect to the CRS, etc., the Defendant’s liability for damages arising from the instant accident is limited to 55% (In addition, as long as the Defendant’s liability is restricted as above in consideration of the aforementioned various circumstances in the instant case, the degree of contribution to the labor disability rate and the degree of contribution to the medical fee judgment, as long as the Defendant’s liability is restricted as above, the contribution to the Plaintiff 1’s contribution to the medical fee judgment does not separately consider

2. Of the scope of liability for damages, determination of the king treatment expenses, future treatment expenses, nursing expenses, and consolation money

(a) Expenses for medical treatment;

(1) On July 17, 2012, the date of closing the argument in the first instance trial, Plaintiff 1 spent KRW 176,260 as the treatment cost.

(2) Furthermore, we examine the treatment costs from the next day to the date of closing the argument in the trial.

In the future, the amount of expected damages, such as medical expenses, can be compensated only for damages actually incurred if the expected period has already elapsed at the time of the closure of the arguments in the fact-finding court (see Supreme Court Decision 2012Da2507, Aug. 23, 2012, etc.). Furthermore, Supreme Court Decision 95Da6991, Jul. 22, 1997, which held that the court is obligated to explain only when there are special circumstances, such as the occurrence of damages, and the occurrence of damages by the date of the closure of arguments, etc.

With respect to this case, even if it is recognized that Plaintiff 1 paid KRW 575,400 for the treatment of CRPS caused by the instant accident from September 18, 2012 to September 16, 2014, which was before the date of closing the argument in the trial, it cannot be presumed that Plaintiff 1 actually spent the same treatment as the above entrustment result, or that there is no other evidence to acknowledge it, only KRW 575,400 per year for the treatment expenses for the instant period, on the ground that Plaintiff 1 would have spent KRW 11,056,468 per year for the preservation of Plaintiff 1’s CRPS symptoms in accordance with the result of commissioning the ○○○ Hospital Director at the court of first instance.

(3) Therefore, Plaintiff 1’s treatment costs amounting to KRW 751,660 (=176,260 + 575,400).

(b) Expenses for future treatment;

(1) The CRPS treatment costs

(a)The preservation costs;

For the purpose of preserving Plaintiff 1’s CRPS symptoms, treatment costs of KRW 11,056,468 are deemed to have been spent per year as shown in the table of treatment costs for the future. From November 28, 2014, every one year from the date following the date of the closing of argument in the trial (in the case of expected treatment costs up to the date of closing of argument in the trial, if such costs are not actually spent as at the time of closing of argument in the trial, they can be recognized as losses for future treatment (see, e.g., Supreme Court Decision 2012Da2507, supra). In light of the fact that the above future treatment costs are for preserving treatment, and the details of actual treatment until the date of closing of argument in the trial, it cannot be deemed that the expected treatment costs for the period up to the date of closing of argument in the first instance trial need to be disbursed after the date of closing of argument in the trial, and it is not deemed that the expected treatment costs for the future period up to the date of closing of argument in the trial, including KRW 16 1615.

However, even if interim interest is deducted pursuant to the Hofman Calculation Act, if the current rate of short-term pension on the monthly numerical value table exceeds 414 months (20 in the case of the annual rate exceeding 36 years), if the current rate of short-term pension on the monthly numerical value table exceeds 240 (20 in the case of the annual rate), the amount to be paid is higher than the amount to be paid monthly by the victim, thereby receiving excessive compensation, so the current rate of short-term pension shall be applied at 240 (20 in the case of the annual rate, etc.) in order to prevent this (see Supreme Court Decision 85Meu819, Oct. 22, 1985, etc.). In this case, since the intermediate interest deduction period exceeds 36 years, if the current rate is limited to 20 years, this part of the future treatment costs is the total amount of 21,129,360 won (=11,056,468 won x 208).

(b)the cost of performing scopic scopic scopic operations;

Plaintiff 1 sought payment of KRW 16,52,084, every nine years for expenses for the operation of the scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic s

(2) Medical expenses related to the mental health

As for Plaintiff 1’s medical expenses for future one year, the total amount of KRW 9,644,727, as indicated in the table of mental and future medical expenses for the next one year, is deemed to have been spent on November 28, 2014, following the date following the closing of argument in the trial at the time of the instant accident, the conversion into the present price at the time of the instant accident would be KRW 7,078,698, as described in the table of future medical expenses in the attached table of damages calculation.

(c) Nursing expenses;

(1) Hasking expenses;

Plaintiff 1 sought payment of KRW 35,734,339 in total at the opening cost, but there is no evidence to prove that Plaintiff 1 paid the above amount at the opening cost. Therefore, this part of the allegation is without merit.

(2) Future nursing expenses

Plaintiff 1 appears to be “the need for a patient’s visit or a long-distance nurse during the life period from September 1, 2010,” and on the premise that the nursing is required for 4 hours a day from September 1, 2010, Plaintiff 1 sought a total of 253,778,400 won for the future nursing expenses. However, there is no evidence to acknowledge that Plaintiff 1 needs a nursing during the life period. In light of the fact that “Plaintiff 1 needs a nursing for 4 hours a day from October 1, 2010 to 3 years”, part of the result of the appraisal of the 000 hospital head of the first instance court’s ○○○ Hospital head’s request for a nursing for a minor, and there is no reason to believe that Plaintiff 1’s nursing for 14 hours a day from the date of the appraisal of Plaintiff 1’s child, and there is no reason to believe that it is difficult for the Plaintiff 1 to have received a nursing for 13 hours or more from the date of the argument.

(d) Mutual aid:

(1) Of the 17,741,940 won paid by the Defendant for the medical expenses of Plaintiff 1 after the instant accident, 7,983,873 won equivalent to the portion of Plaintiff 1’s liability shall be deducted.

(2) 10,00,000 won paid by the Defendant to Plaintiff 1 on July 23, 2009 as provisional payment shall be deducted in full.

(e) consolation money;

In light of the developments and results of the instant accident, it is reasonable to determine respectively the consolation money of Plaintiff 1 as KRW 20,000,000 (the supplementary sheet of damages in the first instance judgment, which is clearly written in the column of damages) and the consolation money of Plaintiff 2 as KRW 3,00,000 (the supplementary sheet of damages in the judgment of the first instance is a clerical error) when considering all the circumstances shown in the instant argument, such as the parts and degree of the Plaintiff 1’s disability, the process and details of treatment, the relationship between Nonparty 1 and Plaintiff 2, the age and occupation of the Plaintiffs and Nonparty 1, and the degree of limitation of liability of the Defendant.

As Nonparty 1 died on July 3, 2009, Plaintiff 1 succeeded to the part of KRW 3,000,000, which corresponds to Plaintiff 1’s inheritance share of KRW 3/5,000, among the deceased Nonparty 1’s claim for solatium amounting to KRW 5,00,000 against the Defendant, Plaintiff 1’s claim for solatium amounting to KRW 23,00,000.

[Ground of recognition] In the absence of dispute, Gap evidence Nos. 1, 3, 4, 6, 7, 8, 10, 11, 13 through 19 (including each number; hereinafter the same shall apply), Eul evidence Nos. 3, 4, 5, 7 through 11, 13, 14, and 15, each evidence Nos. 3, 4, 5, 7 through 11, 14, and 15, each of the evidence Nos. 3, 4, 5, 14, and 15, the court of first instance entrusted the physical appraisal to the head of ○○○ Hospital at the court of first instance, the result of the order of submission of each document to the Seoul ○○ Hospital at the court of first instance, the members of the organizing medical department at the Seoul , the IMs Hospital at the △△△ Hospital, the National Health Insurance Corporation, the △△△ Hospital at the △

F. Sub-committee

Therefore, with respect to the instant accident, the Defendant is obligated to pay the Plaintiff 1 the damages for delay from August 22, 2007, which was the date of the instant accident, to the date of full payment, to the date of the instant accident, with respect to KRW 201,454,116, KRW 3,000, and each of the above amounts.

As to the scope of damages for delay, active damages, passive damages, and mental damages suffered by the Defendant due to a tort against the health unit, life, or body differ in the subject matter of a lawsuit, whether it is reasonable to dispute about the existence or scope of the damages liability shall be separately determined for each damages (see Supreme Court Decision 2000Da63752, Feb. 23, 2001, etc.). As to the damages for delay of KRW 20 million against Plaintiff 1, which is the consolation money cited by the judgment of the first instance court, and KRW 3,00,000,000 against Plaintiff 2, which is the consolation money cited by the judgment of the first instance, and the damages for delay of KRW 20,00,000,000, which are significant from August 22, 2007 to August 14, 201, which is 181,454, and 116, which are 200% annual damages for delay of the Defendant’s 20.5% of the damages for each of the above case.

3. Conclusion

Therefore, each claim of the plaintiffs, including the plaintiff 1's claim added in the trial court, shall be accepted in part within the scope of each above recognition, and the remaining claims shall be dismissed as it is without merit. Since the part of the judgment of the court of first instance different from this conclusion is unfair, the part against the plaintiff 1 in the judgment of the court of first instance, including the plaintiff 1's appeal and the defendant's appeal against the plaintiff 1 added in the trial court, shall be modified as above, and the defendant's appeal against the plaintiff 2 shall be dismissed as without merit. It is so decided as per Disposition.

[Attachment]

Judges Lee Sung-chul (Presiding Judge)