[1] In a case where a travel agency's intentional or negligent injury was inflicted on a travel agency among the attempts that the travel agency travels under an overseas travel contract, requirements to include additional expenses, such as transportation expenses for returning to the country, etc., in the scope of ordinary damages caused by the travel agency's intentional or negligent act, and in such a case, whether the possibility of predictability exists even if the said damage was caused by special circumstances (affirmative

[2] Where Party A suffered mental injury due to an accident while traveling overseas after entering into an overseas travel contract with Party B, which is a travel agency, the case holding that, in light of all circumstances, the expenses incurred by Party A, such as domestic patient delivery expenses, staying expenses, international telephone charges, etc. after the said accident, may be deemed as ordinary damages in proximate causal relation with Party B’s breach of the duty of care and good faith in the travel contract, or the duty of care and good faith to

[1] Article 393(1) of the Civil Act provides, “Compensation for nonperformance shall be limited to ordinary damages,” and Article 393(2) provides, “The liability for damages arising from special circumstances shall be limited to the time the obligor knew or could have known of such special circumstances.” Under Paragraph (1), ordinary damages refer to damages that would normally arise in light of the transaction concept of the society or the empirical rule of the society, barring special circumstances. Damage due to special circumstances under Paragraph (2) refers to damages arising from special circumstances of the parties. If a traveler suffers from injury intentionally or negligently by a travel agency during travel contract, the contractual travel agency is obligated to return to the Republic of Korea. In light of the contents and degree of injury inflicted on the traveler, the necessity and treatment period of treatment, medical system, language disorders and expenses that may arise in the course of treatment, etc., even if it is difficult for a travel agency to return to the country to the country, or if it is acknowledged that there is a need for a travel agency to return additional damages due to an intention or negligence that occurred in the course of treatment within the originally scheduled period of travel.

[2] Where Party A suffered mental injury due to an accident while traveling overseas after entering into an overseas travel contract with Party B, a travel agency, the case holding that in light of all circumstances, the expenses incurred by Party A, such as domestic patient delivery expenses incurred after the accident, expenses incurred in treating the patient abroad, expenses incurred in the course of returning home and in the course of returning home or in the course of dealing with the accident, and international telephone charges, shall be deemed as ordinary damages in proximate causal relation with Party B’s breach of the duty of care and good faith in the travel contract, and the duty of safety consideration

[1] Article 393 of the Civil Code

[1] Supreme Court Decision 2013Da66904 Decided February 27, 2014

Plaintiff

Co., Ltd.

Seoul Central District Court Decision 2017Na88574 Decided October 12, 2018

Of the part of the judgment below against the plaintiff, the part on the expenses for staying in New Zealand, the expenses for domestic patient delivery, and communications shall be revoked, and this part of the case shall be remanded to the Panel Division of the Seoul Central District Court. The remaining appeals shall be dismissed

The grounds of appeal are examined.

1. As to the grounds of appeal Nos. 1 and 2

The fact-finding or the ratio of limitation of liability for offsetting negligence or fair burden of damage in a damage compensation case belongs to the exclusive authority of the fact-finding court unless it is deemed that it is clearly unreasonable in light of the principle of equity (see Supreme Court Decision 2010Da86709, Oct. 11, 2012, etc.).

The lower court determined that the Defendant is liable for compensating the Plaintiff for damages caused by the instant accident, in violation of the duty of care and the duty of safety consideration under the good faith principle under the instant travel contract, on the grounds that the instant accident occurred due to the negligence of the local driver selected by the Defendant, and that the Plaintiff complained of the head’s certificate and requested return to Korea, but the Plaintiff failed to take any particular measures, and that the previous tour schedule was proceeding without taking any measures. In light of the fact that the instant accident appears to be a relatively minor contact accident, and that other travelers than the Plaintiff did not show any abnormal symptoms, the lower court limited the Defendant’s liability to 20% on the ground that the Plaintiff’s qualitative factors contributed to the occurrence and expansion of damages.

Examining the reasoning of the lower judgment in light of the aforementioned legal principles and records, the lower court’s finding of facts or determination of its ratio on the grounds for limitation of liability cannot be considerably unreasonable in light of the principle of equity. Therefore, contrary to what is alleged in the grounds of appeal, the lower court did not err by exceeding the bounds of the principle of free evaluation of evidence against logical and empirical rules

2. As to the third ground for appeal

A. The court below held that the plaintiff suffered mental disorder due to the shock of head of the accident in this case, and held that the defendant is liable to compensate for the damage caused by the accident. (1) On the grounds that the plaintiff's travel expenses of KRW 3,98,000 paid to the defendant under the travel contract in this case did not recognize the obligation to return it, and there is no ground to claim the return differently, (2) the plaintiff's claim on the following grounds: (3) the sum of the expenses for domestic patient's after-patient, including the hotel accommodation expenses, the cost for purchasing hospital goods, etc. claimed by the plaintiff to have been paid to the defendant for the stay in New Zealand due to the accident in this case, and (3) the sum of the expenses for domestic patient's after-patient, the sum of KRW 27,914,100 and KRW 424,492 claimed by the plaintiff while making an international telephone with the plaintiff's father in Korea, is not an ordinary damage in proximate causal relation with each defendant's duty of care under the contract in this case or safety consideration duty under the good faith.

B. Upon examining the reasoning of the lower judgment in light of the relevant legal principles and records, the part of the lower court’s rejection of the Plaintiff’s claim for reimbursement of KRW 3,98,00 for travel expenses is justifiable, and contrary to what is alleged in the grounds of appeal, the lower court did not err by misapprehending the legal doctrine on the scope

C. However, it is difficult to accept the lower court’s rejection of the Plaintiff’s claim on New Zealand sojourn costs, domestic patient delivery costs, and communication costs for the following reasons.

(1) Article 393(1) of the Civil Act provides, “Compensation for nonperformance shall be limited to ordinary damages,” and Article 393(2) provides, “The liability for damages arising from special circumstances shall be limited to the time the obligor knew or could have known of such damages.” Inasmuch as there are special circumstances, ordinary damages referred to in paragraph (1) refer to damages that would normally arise in light of the transaction concept of the society or the empirical rule of the society, barring special circumstances. Damages arising from special circumstances referred to in paragraph (2) refer to damages arising from individual and specific circumstances of the parties (see, e.g., Supreme Court Decision 2013Da6904, Feb. 27, 2014). If a traveler suffers injuries due to an intentional or negligent act of a travel business operator during travel under an overseas contract, the obligation to return to the Republic of Korea for expenses incurred by the travel business operator is difficult to recover from the country, and the necessity and degree of medical treatment of the travel business operator’s injury, technical level of medical treatment or the scope of medical expenses incurred during the course of travel.

(2) Review of the reasoning of the lower judgment and the record reveals the following facts.

(A) Around January 2016, the Plaintiff concluded the instant travel contract with the Defendant, who is a travel agency, from March 9, 2016 to the 18th day of the same month, which is an overseas planned tour goods, and around that time, paid the Defendant a total of KRW 3,998,00,00 including the mother’s travel expenses. The travel amount included the expenses necessary for the Defendant to return the Plaintiff to the Republic of Korea after the completion of the travel.

(B) On March 15, 2016, while the Plaintiff left the Republic of Korea under the instant travel contract and traveled Australia and New Zealand in sequence by the guidance of the Defendant’s employees, the Plaintiff was faced with the instant accident on March 15, 2016. However, the Plaintiff began to look at the horses and actions that were far after the instant accident.

(C) Subsequent to the Plaintiff’s continued participation in the travel schedule, but the Plaintiff caused an abnormal increase and scambling to be hospitalized in the ○○○○ Hospital located in New Zealand on March 17, 2016, and received treatment. At the time, the Plaintiff’s symptoms were doubtful due to acute mental disorder accompanied by islands or multiple formations, and the doctor in charge determined that the Plaintiff’s normal recovery was difficult, and explained that it was necessary to consult with the Plaintiff’s mother about safety issues during flight for the safety of the Plaintiff’s own safety and safety of passengers, etc.

(D) On March 22, 2016, the Plaintiff, upon the recommendation of the above doctor, discharged the Plaintiff from the hospital for returning to the Republic of Korea, and went to the Austria Airport to return to the Republic of Korea on the 24th day of the same month following the Plaintiff’s silent at the local hotel. However, the Plaintiff was arrested by the security personnel, showing abnormal behavior while moving or passing through the search team, and was transferred to the nearby △△△△ Hospital and was hospitalized until April 3, 2016.

(E) On March 31, 2016, the Plaintiff’s father, who had been in the Republic of Korea, entered into an air transport contract with IMS Korea, a domestic emergency patient transport company, and around that time, paid KRW 27,914,100 in total to the said company for expenses incurred in sending back patients to Korea. On April 2, 2016, one doctor belonging to the said company and two emergency medical technicians left New Zealand and arrived at the △△△△ Hospital where the Plaintiff was hospitalized.

(F) The doctor at △△△△ Hospital, who treated the Plaintiff, explained the Plaintiff’s status to the medical personnel. At the time, the said doctor recommended further inspection and treatment of the Plaintiff in Korea, and expressed that, in addition to antipsying agents, it is necessary to administer antipsychopathines and take regular uniforms of antipsychopathine as well as antipsychopathic care agents for safe return from the Plaintiff’s aircraft boarding and safe flight of the Plaintiff.

(G) On April 3, 2016, the Plaintiff was discharged from the hospital at the hospital, and was transferred to the Republic of Korea by the medical personnel at the hospital at the hospital at issue. After that, the Plaintiff was hospitalized in the hospital at △△ University Hospital from the 7th day of the same month to the △△△△ Hospital, etc., and the Plaintiff’s injury was diagnosed as “other acute, sexual mental disorder, acute stress reaction.”

(h) Meanwhile, the Plaintiff’s mother, who was protecting the Plaintiff or the Plaintiff, was unable to have sufficient explanation from the side of the hospital in the process of receiving medical treatment at each of the above hospitals in New Zealand, due to the lack of English language, on the Plaintiff’s condition, treatment progress, inspection result, etc., and was spent at the level of KRW 15 million for the medical expenses at each of the above hospitals. Such medical expenses were fully borne by the Plaintiff on the grounds that New Zealand’s application of the local medical insurance system is refused or exceed the guarantee amount of the travel insurance subscribed for the travel contract in this case.

(3) Examining these facts in light of the legal principles as seen earlier, insofar as the Plaintiff suffered mental injury as seen above due to the instant accident, the instant travel contract included the Defendant’s obligation to return to the Plaintiff. Since the instant accident, it may be deemed that the Plaintiff was difficult to expect that the Plaintiff would receive appropriate medical care in New Zealand within the initial travel period, or that there was a need to return to the Republic of Korea and undergo continuous and professional medical treatment. Accordingly, the costs incurred to return to the Plaintiff may be deemed as ordinary damages in proximate causal relation with the Defendant’s breach of the duty of care or the duty of safety care in light of the good faith principle under the travel contract of this case, which is a travel agency. Furthermore, there is sufficient room to view that the Plaintiff’s additional expenses, such as travel expenses and international telephone charges, incurred in the course of treating the instant accident and returning to Korea from a foreign country, or

(4) Nevertheless, the lower court did not properly examine and determine whether the amount of damages that the Plaintiff spent for domestic patient delivery costs and for New Zealand sojourn costs and communications costs constitutes ordinary damages as seen above, and determined otherwise that it is not ordinary damages in proximate causal relation with the Defendant’s breach of duty of care or duty of safety consideration under the good faith principle under the travel contract in this case, or that it constitutes special damages that the Defendant could have predicted. In so doing, the lower court erred by misapprehending the legal doctrine on causation in damages and ordinary damages, thereby adversely affecting the conclusion of the judgment. The allegation contained in the grounds of appeal on this point is with merit.

3. Conclusion

Therefore, the part of the judgment below against the plaintiff is reversed with respect to the expenses for staying in New Zealand, the expenses for transporting domestic patients, and the expenses for communication, and this part of the case is remanded to the court below for a new trial and determination, and the remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices

Justices Kwon Soon-il (Presiding Justice)