The method of calculating the loss rate of labor ability due to a traffic accident, if the person was unable to be employed due to the loss of 70% of his/her original labor ability due to the industrial accident, and if the person was involved in the traffic accident in 11 months

In a case where the Plaintiff, who was initially judged as being unable to be employed due to the loss of 70% of his/her work ability due to the industrial accident, received a lump sum payment on disability benefits, again suffered injury due to the traffic accident, barring any special circumstance, such as where the degree of the loss of work ability due to the initial accident and the injury caused by the traffic accident is different, and where the Plaintiff was temporarily employed due to the driving accident, the degree of the loss of work ability due to the accident is confirmed as a result of a re-measurement, barring any special circumstance, such as where the loss of work ability was confirmed as a result of the re-measurement, the Plaintiff cannot be presumed to have recovered in full at least 70% of his/her work ability which was already lost due to the traffic accident from the date of the determination of the loss of work ability. Therefore, in order to calculate the rate of the loss of work ability due to the occurrence of the traffic accident from the original complete work ability, the Plaintiff’s loss of work ability should be taken into account, such as identifying the degree of the loss of work ability due to be considered.

Articles 763 and 393 of the Civil Act

Plaintiff

Attorney Park Chang-chul, Counsel for the defendant-appellant

Seoul High Court Decision 87Na5449 delivered on November 24, 1988

The part of the lower judgment against the Defendant regarding passive damage is reversed, and that part of the case is remanded to the Seoul High Court.

1. Regarding ground of appeal No. 1

According to the reasoning of the judgment below, as to the Defendant’s assertion that the Plaintiff’s disability and post-treatment were based on the above king evidence Nos. 6-1 through 3 (written opinion), 4, 5 (b), 7-2 (Medical Care Application), and 3 (Insurance Benefit Ledger) as to the Plaintiff’s injury caused by the industrial accident before the instant accident, and lost 70 percent of the labor force, the court below rejected the Plaintiff’s allegation that the Plaintiff was suffering from injury, such as the injury at the 12 pleh degree and pressure on Nov. 19, 1983, and the injury caused by the accident at the 6th grade 4th grade of the physical disability, and that the Plaintiff was unable to suffer from injury due to the accident at the 7th grade of the Plaintiff’s industrial accident after receiving a lump sum payment of disability grade 60 percent due to the accident at the 1984, and even if the Plaintiff was found to have been suffering from injury after the accident at the 7th grade of the Plaintiff’s industrial accident after the death.

However, as examined in the above facts and the following, if the plaintiff received hospital treatment from November 19, 1983 to February 18, 1984 after receiving hospital treatment from June 30 of the same year, and received a lump-sum disability benefit payment after being judged to be disabled by the physical disability such as injury, etc., then being judged to remain disabled, this constitutes a flexible material to know that there was a loss of labor ability due to the remaining disability after the completion of medical treatment. Thus, even if the injury part caused by the accident in this case differs from the original accident, and even if the plaintiff was temporarily employed as a driving machine, the degree of loss of labor ability due to the original accident is confirmed as a result of re-measurement, barring any special circumstances, such as where the degree of loss of labor ability due to the accident in this case was confirmed as a result of re-measurement of the fact that the labor ability had been recovered, it cannot be presumed that the labor ability had been fully recovered by 70 percent after the date of the accident in this case ( June 4, 1985).

Therefore, even though there was a result of the lower court’s entrustment of appraisal that the loss of 51 percent of the ability to work was recognized due to the instant injury, the Plaintiff may be deemed again to have lost the ability to work due to the instant accident while the Plaintiff lost the ability to work. Therefore, in order to calculate the ratio of the loss of ability to work due to the instant accident, the Plaintiff should combine the obstacles existing in the king and the instant accident with the obstacles to calculate the ratio of the loss of ability to work due to the failure to work, and should have taken into account the degree of the loss of ability to work due to the previous disability, such as reducing the degree of the loss of ability to work due to the king’s disability, even though 51 percent of the loss of ability to work due to the instant accident should be deemed to have been in violation of the rules of evidence or by misapprehending the legal principles on the calculation of the lost ability, thereby affecting the conclusion of the judgment.

2. Regarding ground of appeal No. 2

According to the reasoning of the judgment below, since Gap evidence 5 (Driver's driver's license), Gap evidence 6 (certificate of wage payment), Gap evidence 7 (certificate of wage payment), each evidence of physical examination conducted by the court below and the court of first instance for hospitals affiliated to Hanyang University (part of the appraisal conducted by the court of first instance), etc., and the whole purport of oral argument, the plaintiff was ordinarily healthy male who left 40 years and 40 months at the time of the above accident with the first-class driver's license on September 15, 1980, and the plaintiff was unable to obtain the above 1-class driver's license on June 15, 1984 and June 4 of the same year, 1985, and the plaintiff was employed as driving staff at the right-hand distance of 1-6 years from the above 1-6-year driver's license on June 4, 1985, and the plaintiff was employed at the right-hand distance level of 1-5 years from the above 1-year driver's death.

However, the court below's finding that the above facts were grounded in Gap's evidence Nos. 6 and 7 (written confirmation of the above facts) and that the plaintiff was employed as a driver of the vehicle driving school from June 1, 1983 to June 4, 1985 (Evidence No. 7). However, the court below rejected the plaintiff's allegation that the plaintiff was unable to provide wages for 3 months since 1983's work under the above testimony Nos. 16 and Nos. 14 for 30 and Nos. 196's work for 196's work, and it was hard to find that the plaintiff was unable to provide medical treatment for 19's work for 3 months after 19's testimony during the 19's work. The court below rejected the plaintiff's testimony for the first time since it was found that the plaintiff was unable to be employed as a driver for the extended period of 19's work.

Ultimately, the court below should have committed an unlawful act that affected the judgment by violating the rules of evidence or failing to exhaust all necessary deliberations.

3. The part against the Defendant regarding passive damages among the judgment below is reversed, and this part of the case is remanded to the court below. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Lee Jong-soo (Presiding Justice) Lee Chang-soo Kim Jong-won