2012Da22624 Compensation (as stated)

1. N;

2. This;

3. P.

4. Q.

Korea

Daegu High Court Decision 2008Na8059 Decided January 12, 2012

September 15, 2015

All appeals are dismissed.

The costs of appeal are assessed against the Defendant.

The grounds of appeal are examined (to the extent of supplement in case of supplemental appellate briefs not timely filed).

1. Even if a person moves to a high-pollution area around an airfield, unless there are circumstances such as the situation and motive leading up to moving to the dangerous area, and it can be deemed that the perpetrator was aware of the existence of danger and the damage caused thereby, and thereby allowing the damage therefrom, the perpetrator’s exemption cannot be acknowledged. In calculating the amount of damages in accordance with the principle of equity, such circumstances may be considered as grounds for reduction corresponding to comparative negligence (see, e.g., Supreme Court Decisions 2003Da49566, Jan. 27, 2005; 2007Da74560, Nov. 25, 2010). Such legal doctrine likewise applies to military personnel or civilian employees belonging to the air force in cases of damages arising from aircraft noise damage around the air Force, barring special circumstances.

Meanwhile, the fact-finding or determination of the ratio of comparative negligence in a tort compensation case is an exclusive right of a fact-finding court unless it is deemed that it is considerably unreasonable in light of the principle of equity (see Supreme Court Decision 2002Da43165, Nov. 26, 2002).

2. The court below calculated the consolation money for the plaintiffs and the joint plaintiffs of the court below who resided around the above airfield while living in the vicinity of the above airfield, considering the characteristics of aircraft noise, the degree of noise caused by the aircraft operated by the defendant in Daegu Airfield installed by the defendant, the frequency of flight, main flight hours, residential area, and degree of damage, etc. The plaintiffs or the joint plaintiffs of the court below calculated the consolation money for the plaintiffs and the joint plaintiffs of the court below. Even if the plaintiffs or the joint plaintiffs of the court below moved nearby the above airfield after January 1, 1989 widely known that the above airfield area was continuously exposed to aircraft noise, they cannot be deemed to have accepted the damage caused by aircraft noise, but since they moved without recognizing or recognizing the noise damage by negligence, 30%

Furthermore, even if the plaintiffs, who were soldiers or civilian workers belonging to the Air Force at the time of transfer to the Daegu Airfield, were transferred to their family members in recognition of noise damage and for convenience of commuting to and from work, considering the motive and circumstance, the above circumstance alone cannot be deemed as having accessed the plaintiffs to the extent that they are exempted from the defendant's liability for damages due to noise, and there is no reason to treat them differently from the general public as compensation for noise damage in the residential area. Thus, the court below rejected the defendant's claim for exemption from liability against the plaintiffs who are military servicemen or civilian workers, and did not consider the above circumstance separately

Examining the reasoning of the lower judgment in light of the evidence duly admitted, such determination by the lower court may be deemed based on the legal doctrine as seen earlier. In so doing, contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on exemption from liability and comparative negligence by approaching risks, thereby failing

3. Therefore, all appeals are dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Kim Shin-chul

Justices Park Poe-young

Justices Kim Jong-il