2017Na86491 Compensation for damages

○ ○

Chicago-si

The place of service and the number district of service;

Attorney Park Jae-hoon

Attorney Lee Jae-soo

Is 00

Chicago-si

The service place shall be in the jurisdiction of the Si/Gun/Gu

Suwon District Court Decision 2016Da542511 Decided November 24, 2017

September 20, 2018

November 1, 2018

1. The judgment of the first instance, including the plaintiff's claim extended by this court, shall be modified as follows:

A. The Defendant shall pay to the Plaintiff 51,953,583 won with 5% interest per annum from November 23, 2015 to November 24, 2017, and 15% interest per annum from the next day to the day of full payment.

B. The plaintiff's remaining claims are dismissed.

2. One-half of the total costs of litigation shall be borne by the Plaintiff, and the remainder by the Defendant, respectively.

3. Paragraph 1. A of this Article may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 115,353,940 won with 5% interest per annum from November 23, 2015 to the delivery date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment (the plaintiff extended its claim by this court).

2. Purport of appeal

A. The plaintiff

The part against the plaintiff in the judgment of the first instance shall be revoked. The defendant shall pay to the plaintiff 36,095,403 won with 5% interest per annum from November 23, 2015 to the delivery date of a copy of the complaint of this case, and 15% interest per annum from the next day to the day of complete payment.

B. The part against the defendant among the judgment of the court of first instance against the defendant is revoked, and the plaintiff's claim corresponding thereto is dismissed.

1. Facts of recognition;

A. On November 23, 2015, the Defendant received a request from the Plaintiff for repair of the air conditioners of the B B ready-mixed vehicle from his car maintenance and industry company located in Permitted-si.

나. 피고가 위 에어호스를 수리하는 과정에서 위 에어호스의 너트를 풀자 압력에 의하여 에어호스가 튕겨나가면서 피고 근처에서 작업 과정을 지켜보고 있던 원고의 오른쪽 눈을 쳤고, 원고는 이로 인하여 전방출혈(우안) 등의 상해를 입었다(이하, '이 사건 사고').

C. As to the instant accident, the Defendant was sentenced to the Suwon District Court Decision 2016 High Court Decision 2861 on February 9, 2017, and 2 years of suspended execution, which became final and conclusive around that time.

[Ground of recognition] The facts without dispute, Gap evidence 1 to Gap evidence 4, the purport of the whole pleadings.

A. According to the above facts, although the defendant had a duty of care to prevent safety accidents by taking measures to prevent other person from close close to the risk at the work site, the defendant neglected such duty and caused the accident in this case by negligence without having the plaintiff who was in the defendant's work process maintained a safety distance or equipped safety equipment. Thus, the defendant is liable to compensate the plaintiff for damages caused by the accident in this case.

B. However, when adding the purport of the entire pleadings to the statements in the evidence Nos. 1 and 2, it is reasonable to view the Plaintiff’s fault ratio in the instant accident as 40% in view of the following circumstances, i.e.,: (a) although a signboard was installed to the effect that “to restrict entry into and exit from the workplace” within the maintenance shop of the Defendant’s operation, the Plaintiff did not properly recognize it; (b) the Plaintiff was entering the workplace where the Defendant was working; and (c) the accident in this case appears to have occurred while the Plaintiff was working without clearly recognizing the fact that the Plaintiff was approaching the Defendant without any particular seal; and (d) the Plaintiff was approaching the Defendant without having been working. Therefore, the Defendant’s responsibility for the instant accident is limited to the remainder of 60%, excluding the Plaintiff’s fault ratio.

3. Scope of liability for damages

The following facts may be acknowledged in full view of the evidence No. 1 through No. 9, evidence No. 1 to No. 1, evidence No. 3, evidence No. 3, evidence No. 3, evidence No. 3, evidence No. 1 to C University Seoul Hospital Head of the first instance court: Provided, That the period for the convenience of calculation shall be calculated on a monthly basis, but the period for the convenience of calculation shall be calculated on a monthly basis, and all less than the last month and less than KRW 1 shall be discarded. The current price calculation at the time of the accident shall be based on the discount method that deducts the intermediary interest at the rate of 5/12 per month. On the other hand, it is deemed that the parties’ assertion

(a) Actual income;

1) Personal information: as indicated below, and at the time of the instant accident, the Plaintiff was working as a ready-mixed article.

A person shall be appointed.

2) Maximum working age: until November 30, 2024, the Plaintiff asserted to the effect that the maximum working age of the Plaintiff was 91,061,280 won in total from the date of the instant accident until November 30, 2029, since the Plaintiff was a physically healthy long-term man who had been engaged in construction machinery driving business without difficulty before the instant accident occurred, the Plaintiff’s maximum working age should be deemed to be November 30, 2029, wherein the Plaintiff reached the age of 65 until November 30, 2029. In this regard, the Plaintiff’s assertion that the maximum working age of the person who mainly engages in labor should be deemed to be until he reaches 60 years of age in light of the empirical rule. However, in special circumstances, the Plaintiff’s assertion that the maximum working age exceeded the age of 60,000,000 won cannot be deemed to have exceeded the age of 60,000,000 won.

(iii) Income;

A) Monthly wage of KRW 2,869,042 (=one-day unit wage of a construction machinery operator 130,411 won x 22 days of monthly work)

B) As to this, the Defendant asserts to the effect that since the Plaintiff was absent from the Plaintiff at the time of the instant accident since there was no details of income tax return in 2015, the daily wage per day for urban daily workers should be applied. However, considering the overall purport of the pleadings in the statement No. B. 1, it can be recognized that the Plaintiff was working as a ready-mixed article at the time of the instant accident, and it is reasonable to apply the daily wage rate for construction machinery drivers in determining the Plaintiff’s income, and the Plaintiff’s statement on the evidence No. 4 (the reply to the order to submit a court letter of personal duty) alone was insufficient to deem that the above recognition was back to the Plaintiff at the time of the instant accident. Accordingly, this part of the Defendant’s assertion is without merit.

(iv) the loss rate of labor capacity: 24% of the loss rate of labor capacity for telegraph (Mabrid, Mabrid, friendly ophye and ophye, permanent disability)

5) Calculation: Total sum of KRW 61,296,646 is as follows:

A person shall be appointed.

(b) aggressive damage;

Medical expenses 292,660 won (792,660 won of the plaintiff's medical expenses - KRW 500,000 of the defendant's medical expenses). Limitation of liability: 60% of the defendant's liability ratio

(a) Actual income: 36,77,987 won (61,296,646 won x 60 percent);

(b) Medical expenses: 175,596 won (292,660 won x 60 percent);

3) Aggregate: 36,953,583 won (=36,777,987 won + 175,596 won)

(d) Condolence money;

1) Reasons for taking into account: Circumstances revealed in the arguments, such as the background of the instant accident, the details and degree of the Defendant’s negligence, the parts and degree of the injury suffered by the Plaintiff, the contents of the permanent disability and its impact on the Plaintiff’s survival in the future, the details and degree of the Plaintiff’s negligence, the degree of loss of physical capacity, the Plaintiff’s treatment

(ii) Amount recognized: 15,000,000 won;

E. Sub-committee

Therefore, the Defendant is obligated to pay the Plaintiff damages at the rate of 51,953,583 won (daily income 36,777,987 won + medical expenses 175,596 won + solatium 15,596 won + damages for delay calculated at the rate of 5% per annum prescribed by the Civil Act from November 23, 2015, the date of occurrence of the instant accident, to November 24, 2017, which is deemed reasonable for the Defendant to resist the existence or scope of the obligation to perform, and the damages for delay calculated at the rate of 15% per annum prescribed by the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings from the next day to the date of full payment.

4. Conclusion

Therefore, the plaintiff's claim shall be accepted within the scope of the above recognition, and the remaining claim shall be dismissed as it is without merit. Since the judgment of the court of first instance is partially unfair, it is so decided as per Disposition by changing the judgment of the court of first instance.

The presiding judge and the highest judge;

Judges Man Ho-ho

Judges Kim Gin-Un

1) The sum totaling KRW 91,061,280 and KRW 292,660 of medical expenses and KRW 24 million of medical expenses, which is the actual income portion than the claim before the modification.

The amount of claims has increased.

2) The Plaintiff’s application for the purport of the claim as of September 29, 2017 and the cause of the claim are as follows: 1 construction machinery operators based on the unit price of individual occupational wages for the first half of 2016.

In the first instance court, there is no evidence to the effect that the Plaintiff’s income should be calculated on the basis of the daily wage unit price of KRW 135,644.

In addition, not only did it be submitted but also did not submit the data related to it. Accordingly, the date of the accident in this case is the date of accident.

The first day determined in the investigation report on the actual condition of construction wages (the defendant submitted to the court of first instance) in the second half of the year 2015, which applies to November 23, 2015.

The unit wage rate shall be 130,411 won.