2018 Ghana 125133 (Mains) Verification of Non-existence of Obligations

2018 Ghana 141272 (Counterclaim)

A Federation

Law Firm LLC et al., Counsel for defendant-appellant

Attorney Park Jin-jin

B

Attorney Yoon-ju, Counsel for the plaintiff-appellant

December 6, 2019

January 17, 2020

1. On March 30, 2018, around 15:20, it is confirmed that the liability for damages to the Defendant (Counterclaim Defendant) of the Plaintiff (Counterclaim Defendant) with respect to the traffic accident that occurred at the crosswalks in front of the D Middle School located in Dobong-gu Seoul Metropolitan Government, Seoul does not exist in excess of the amount set forth in paragraph (2).

2. The plaintiff (Counter-Defendant) shall pay to the defendant 39,015,673 won and the amount calculated by applying 5% per annum from March 30, 2018 to January 17, 2018, and 12% per annum from the next day to the date of full payment.

3. The remaining claims of the Plaintiff (Counterclaim Defendant) and the remaining claims of the Defendant (Counterclaim Plaintiff) are dismissed, respectively.

4. The costs of the lawsuit are assessed against the Plaintiff (Counterclaim Defendant) by adding the principal lawsuit and the counterclaim, and the remainder are assessed against the Defendant (Counterclaim Plaintiff).

5. Paragraph 2 can be provisionally executed.

【Main Office】

On March 30, 2018, around 15:20 on March 30, 2018, it is confirmed that there is no obligation to the Defendant (Counterclaim Defendant; hereinafter referred to as “Defendant”) of the Plaintiff (Counterclaim Defendant; hereinafter referred to as “Plaintiff”) with respect to the accident that occurred at the crosswalk in front of the D Middle School located in Dobong-gu Seoul Metropolitan Government.

[Counterclaim]

The plaintiff shall pay to the defendant 151,148,94 won and the amount calculated by the ratio of 5% per annum from March 30, 2018 to the service date of a duplicate of the counterclaim of this case, and 12% per annum from the next day to the day of complete payment.

A principal lawsuit and a counterclaim shall be deemed simultaneously.

1. Basic facts

The following facts are recognized as either a dispute between the parties, or as a whole by taking account of the whole purport of the arguments as a result of the fact inquiry to the head of the Seoul Provincial Police Station of this Court and the head of the Seoul Local Headquarters of the Road Traffic Authority.

A. On March 30, 2018, E driving a G bus owned by F Co., Ltd. (hereinafter referred to as “Plaintiff bus”) around 15:20, and driving the front crosswalk of the D Middle School located in Dobong-gu Seoul Metropolitan Government, which is located in the children protection zone, on the side of the vehicle, along with the vehicle travelling signal, at a speed of about 38.9 km per hour when the speed exceeds the speed of restriction by using two lanes among the two-lanes, depending on the vehicle driving signal, and the above crosswalk was a pedestrian stop signal, while the Defendant, who was going on the roadway from India to cross the right side of the Plaintiff bus to the left side, was facing the Defendant’s right side (hereinafter referred to as “the instant accident”). The rear wheels of the Plaintiff bus, while going beyond the Defendant, was in the direction of the passage of the Plaintiff bus.

B. The Defendant suffered injury, due to the instant accident, such as damage to minculization alley in the upper right brush in the upper right brush and damage to human-conformation of raw brush, minculverization alley in the upper right brush, flusium in front of the upper right brush, flusium in front of the front right brush, strusium in front of the bru

C. The Plaintiff is a mutual aid business entity that entered into a comprehensive motor vehicle mutual aid agreement with respect to the Plaintiff bus.

2. Occurrence of liability for damages;

A. Recognition of liability for damages

According to the above facts, as the insurer of the Plaintiff bus, the Plaintiff is responsible for compensating the Defendant for damages in proximate causal relation caused by the instant accident, barring any special circumstance.

As to this, the plaintiff did not have a duty of care to anticipate and drive the crosswalk without permission by disregarding the signal of the plaintiff bus driver, and even if the plaintiff bus driver complied with the restricted speed within the child protection zone, the plaintiff could not avoid the accident of this case, considering the distance necessary for the suspension, so it is not sufficient to recognize the plaintiff's above assertion merely with the statement of evidence No. 4 and the fact inquiry results on the Seouldo Chief Police Station of this Court in light of the following circumstances, and there is no other evidence to acknowledge it.

The instant accident occurred on a road located within a children protection zone near the D primary school. On a road within a children protection zone, pedestrians, such as children crossing the road without permission, disregarding traffic signal, etc., are often expected to be easily anticipated by anyone who drives a motor vehicle. The restricted speed in a children protection zone is merely the maximum speed established to prevent frequent traffic accidents due to the aforementioned circumstances. In addition, the Plaintiff bus drivers continued to drive the Plaintiff bus in excess of the restricted speed from entering the said road to the time the instant accident occurred.

The driver of the Plaintiff bus who intends to run a road with a crosswalk installed in the children protection zone shall not observe the restricted speed in the vicinity of the crosswalk, but shall have driven the Plaintiff bus safely with due care by complying with the restricted speed in the entire road section of the children protection zone, and only with the vague trust that pedestrians will thoroughly comply with the traffic signal, rather than driving the Plaintiff bus. It is reasonable to deem that the instant accident occurred due to the Plaintiff bus driver’s failure to do so.

Ultimately, the Plaintiff’s assertion of exemption from liability, such as negligence, cannot be accepted.

B. Limitation on liability

However, the defendant also did not properly confirm whether there was a vehicle in which the pedestrian signal of the crosswalk was red and next, but the guardian was living alone, and without properly ascertaining whether there was a vehicle in progress, and such defendant's negligence was caused by the occurrence of the instant accident and the expansion of damage. Therefore, in light of such circumstances, the plaintiff's responsibility is limited to 60%.

3. Scope of liability for damages

In addition to the following separate statements, the period for calculating the amount of damages shall be calculated on a monthly basis, and in principle, the period for calculating the amount of damages shall be calculated on a monthly basis, but less than the last month and less than KRW 10 shall be discarded. The current value calculation at the time of the accident shall be in accordance with the fractional interest rate which deducts the interim interest at the rate of 5/12 per month. The purport of rejecting any separate statement among the parties' arguments.

【Fact-finding without dispute over the basis of recognition, Gap evidence 6, Eul evidence 7 and 15, each of the evidence of this court's commission of physical examination to the chief of the I Hospital, the rule of experience, significant facts, and the purport of the whole pleadings

(a) Actual income:

1) Personal information: To be written in the column of “basic information” in the attached Form 1 computation of damages.

(ii) income and operation period;

○ 40% of urban daily wage, 22th day of each month, and 65 years of age for operation;

- There is no medical assessment result as to whether the Defendant had a certain degree of labor ability compared with the non-disabled persons prior to the occurrence of the instant accident. As to Grade 1 of the former Enforcement Rule of the Act on Welfare of Persons with Disabilities (amended by Ordinance of the Ministry of Health and Welfare No. 606, Jun. 4, 2019) provides that “a person with an intelligence index less than 35, who needs protection of others for one life due to considerable difficulty in adapting to the daily life and social life” as to Grade 1 of the said Act. However, in full view of the purport of the oral argument in subparagraph 15, even if a person with a intellectual disability of Grade 1 is a disability of Grade 1, it is not impossible to perform duties such as simple production, office, and food-related service. Considering these circumstances, it is reasonable to view that the Defendant had a labor ability of at least 40% compared to the ordinary father prior to the occurrence of the instant accident.

(iii) the rate of loss of labour capacity due to the latter disability;

○ Application of the Labor Capacity Loss Rate 17% due to the limitation, etc. on the right-hand satisfaction exercise, etc. 17%, permanent disability (application of Mabrid Mabro-II-B-a, vocational coefficient 6)

○ Rate of Loss of Labor Capacity by Period

① From March 30, 2018 to August 4, 2018: 10% (it shall be deemed that the Defendant received hospitalized treatment for 127 days from March 30, 2018 to August 3, 2018 due to the instant accident, and for 128 days from the date of the instant accident to August 3, 2018, and for 1 October 4, 2018, for calculation convenience, it shall be deemed that he/she received hospitalized treatment for 128 days from the date of the instant accident to August 4, 2018).

(2) From August 5, 2018 to December 28, 2058: 17%

○ Calculation: 49,967,013 won, such as in the column of “actual income” in the attached Form 1 List of Compensation Calculations.

(b) Wang medical expenses: 5,675,000 won (from March 30, 2018 to August 30, 2018);

(c) Assistant tools: 1,350,400 won;

The auxiliary equipment equivalent to KRW 250,000 is required every five years. Since there is no evidence to deem that the Defendant spent it until the closing date of the pleadings in this case, it is deemed that the Defendant first disbursed it on December 7, 2019, which is the day following the closing date of the pleadings in this case, and that it was disbursed until the closing date of the name, and it is calculated at the present price at the time of the accident in this case. The detailed calculation details are as shown in the attached Table 2.

(d) Future medical fees;

(a) Expenses for the removal and operation of fixed objects within the satisfaction level: 2,372,110 won;

Since there is no evidence to deem that the Defendant spent it by the closing date of the pleadings in this case, it shall be deemed that it was paid on December 7, 2019, the day following the closing date of pleadings in this case, and it shall be calculated at the present price at the

A person shall be appointed.

2) The Defendant asserts that the Defendant would demand payment of the expenses for preservation in relation to external colony salt, the expenses for satisfaction surgery, and the expenses for recompony surgery for satisony surgery for satisfy, and the expenses for recompony surgery for satisfy surgery for satisfy, other than satisfy abandonment (i.e., KRW 4,050,230 - KRW 2,570,00) and the expenses for recompony surgery for satisfying surgery for satisfys at the specific claim for medical expenses in the future. However, considering the fact that there was no evidence to prove that the Defendant had received treatment in relation to satisfy, it is insufficient to acknowledge this part of the Defendant’s assertion, and there is no other evidence to prove this otherwise.

E. Limitation of liability

1) The Plaintiff’s liability ratio 60%

2) Calculation: 35,618,713 won [=59,364,523 won + KRW 49,967,013 + KRW 5,675,00 + KRW 1,350,400 + 2,372,110) + 0.6];

(f) Mutual aid;

Of the Defendant’s total medical expenses paid by the Plaintiff from June 1, 2018 to November 1, 2019, KRW 6,603,040 equivalent to 40% of the Defendant’s fault ratio of KRW 16,507,60.

(e) consolation money;

1) Reasons for taking into account: the particulars of the instant accident, the age of the Defendant, the degree and degree of the injury and the disability of the Defendant, and all other circumstances revealed in the instant pleadings.

(ii) Amount recognized: 10,000,000 won;

F. Sub-committee

Thus, the plaintiff is obligated to claim confirmation from the defendant as compensation for damages amounting to 39,015,673 won (=29,015,673 won (=35,618,713 won - 6,603,000 won) + 10,000,000 won] and from March 30, 2018, which is the date of the occurrence of the accident in this case, to dispute about the existence or scope of the plaintiff's duty of performance from March 30, 2018 to January 17, 2020, and from the next day to the date of full payment, 5% per annum under the Civil Act until January 17, 2020, and 12% per annum as stipulated under the Act on Special Cases Concerning the Promotion, etc. of Legal Proceedings until the date of full payment. The plaintiff is obligated to claim confirmation from the plaintiff unless the defendant disputes the existence or absence of the above obligation to the plaintiff.

4. Conclusion

For the same reasons, the plaintiff's main claim and the defendant's counterclaim are partly cited.

Judge Lee Bo-chul

A person shall be appointed.

A person shall be appointed.