2016 Ghana 252194 Damage (ar)

A

1. Incidental passengers of a stock company;

2. The National Federation of Bus Transport Business Associations;

June 13, 2017

August 25, 2017

1. The Defendants jointly pay to the Plaintiff 95,687,696 won with 5% interest per annum from May 10, 2016 to August 25, 2017, and 15% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims against the defendants are dismissed.

3. 3/4 of the costs of lawsuit is assessed against the Plaintiff, and the remainder is assessed against the Defendants.

4. Paragraph 1 can be provisionally executed.

The Defendants jointly pay to the Plaintiff the amount of KRW 392,839,302 with 5% per annum from May 10, 2016 to the service date of a copy of the complaint of this case, and 15% per annum from the next day to the day of complete payment.

1. Occurrence of liability for damages;

(a) Facts of recognition;

1) On May 9, 2016, Nonparty B (hereinafter referred to as “B”) driven the C urban bus (hereinafter referred to as “Defendant vehicle”) around 22:50 on May 22, 2016, driven the front part of the Defendant vehicle at the front part of the instant accident (hereinafter referred to as “instant accident”). Nonparty B (hereinafter referred to as “the instant accident”) driven the F (hereinafter referred to as “the network”) driving on the front part of the Defendant vehicle at a speed of about 51 km away from the surface of the shooting distance in drawing to the surface of the road in the south-gu Incheon Metropolitan City.

2) On May 10, 2016, while the Deceased was receiving medical treatment at the Acheon Street Hospital due to the instant accident, the Deceased died due to brain escape around 2:45 on May 10, 2016, such as pan-cerebrovascular infection and pan-cerebrovascular infection.

3) On September 21, 2016, B was charged with violating the Act on Special Cases Concerning the Settlement of Traffic Accidents by the Incheon District Court Decision 2016Da3661, and was sentenced to a suspended sentence of one year on September 21, 2016. The said judgment became final and conclusive around that time.

4) The Plaintiff is the father and the sole heir of the deceased, and the vice passenger company of the Defendant corporation (hereinafter referred to as the “Defendant corporation”) is the owner and the user of the Defendant vehicle, and the Defendant National Federation of Bus Transport Business Co., Ltd. (hereinafter referred to as the “Defendant Association”) concluded a mutual aid agreement with the Defendant company regarding the Defendant vehicle.

[Ground of recognition] Facts without dispute, Gap evidence Nos. 1 through 7 (including each number; hereinafter the same shall apply), Eul evidence Nos. 4 through 7 and the purport of the whole pleadings

B. Whether to recognize liability

1) Determination

According to the above facts of recognition, although a person engaged in driving of a motor vehicle has a duty of care to accurately operate the steering gear and the steering gear, and to safely drive the steering gear and the steering gear, it caused the instant accident while driving the motor vehicle in violation of this duty. Thus, the Defendants jointly and severally are liable to compensate the Plaintiff for the damages caused by the instant accident.

2) The defendants' assertion and judgment

As to this, the Defendants asserted that the accident of this case occurred due to the negligence of unauthorized crossing the vehicle between the vehicles that the Plaintiff is driving on the road adjacent to the Defendant vehicle, and that the accident of this case was force majeure because it was not possible for the Plaintiff to anticipate the unauthorized crossing, and that the accident of this case could not avoid the accident of this case.

The main text of Article 3 of the Guarantee of Automobile Accident Compensation Act provides that "a person who operates an automobile for his/her own sake shall be liable to compensate for damage caused by the death or injury of another person due to the operation of the automobile by providing that "if he/she has caused the death or injury of another person, due to the operation of the automobile, he/she shall be liable to compensate for the damage." However, the proviso provides that "if a person who is not a passenger dies or has been injured, he/she shall not be negligent in paying attention to the operation of the automobile, but shall not apply in cases where he/she has proved that he/she or any third person, other than his/her own or his/her driver, has caused the death or injury to the automobile, and that a person who is not a passenger of the automobile or a passenger of another vehicle has not caused any defect or malfunction in the structure of the automobile, he/she shall not be liable to compensate for the damage caused by the death or injury of the motor vehicle, and the burden of proof as to the reasons for the above reasons for exemption shall be liable to the person who operates the automobile for his/herself (see, etc.).

In light of the above legal principles, the facts that the deceased illegally cross the instant accident on the roads adjacent to the time of the instant accident are as seen earlier, but if B fulfilled the duty of front-way and the duty of front-way, and withdraws the Dong Dong-gu measures at that time, it would have been likely that the occurrence of the instant accident was avoided or the damage caused by the said accident would have been reduced. The circumstances cited by the Defendants alone are not enough to prove that B did not violate the duty of due care with respect to the occurrence of the instant accident. Thus, the Defendants’ above assertion cannot be accepted.

C. Limitation on liability

다만, 앞서 든 각 증거에 변론 전체의 취지를 종합하여 인정할 수 있는 다음과 같은 사정 즉, ① 이 사건 사고가 발생한 도로는 고속도로 IC 출구 부근 도로로서 도로중앙선 및 IC 출구 부근 도로 경계선에 각 봉들이 설치되어 있었고, 도로와 인도 사이에 보행자의 통행을 막기 위하여 철로 만든 안전울타리가 설치되어 있었으며, 가까운 곳에 횡단보도가 설치되어 있지 않은 점, ② 이 사건 사고 당시 피고 차량의 맞은편에서 여러 대의 차량들이 헤드라이트를 켠 채로 진행하고 있었는데, 망인은 무단횡단을 하면서 그 사이를 지나온 후 계속하여 중앙선 부근에서 뛰어서 무단횡단한 점, ③ 피고 차량의 크기 및 진행속도 등을 감안할 때 망인으로서도 조금만 주의를 기울이고 진행여부를 확인하였더라면 이 사건 사고를 충분히 방지할 수 있었을 것으로 보이는 점, ④ 규정속도를 준수하면서 2차로 상에서 진행하고 있던 B로서는 망인이 위와 같은 방법으로 무단횡단하리라는 것을 쉽게 예측할 수 있었다고 보기 어려운 점 등에 비추어 보면, 망인으로서도 야간에 만연히 무단횡단을 한 잘못이 크고, 이와 같은 망인의 과실도 이 사건 사고로 인한 손해의 발생 및 확대에 상당한 원인이 되었으므로, 피고들이 배상하여야 할 손해액을 산정함에 있어 이를 참작하기로 하여 망인의 과실을 65%로 정하고 피고들의 책임을 35%로 제한한다.

2. Scope of liability for damages

In addition to the following separate statements, each item of the attached table for calculating the amount of damages shall be the same as each item of the attached table for calculating the amount of damages, and the period for calculating the amount for the convenience of calculation shall be calculated on a monthly basis in principle, but less than the last month and less than the cost shall be discarded, and the current price calculation at the time of the accident shall be in accordance with the simple interest rate which deducts the interim interest at the rate of 5/12 per month. And it shall

[Reasons for Recognition] Facts without dispute, each evidence before the dispute, entry of Eul evidence No. 2, substantial facts in this court, the purport of the whole pleadings

(a) Actual income:

1) Basics: as stated in the column of "basics" in the attached Form of damages calculation sheet.

(ii) income and operation period;

As the Plaintiff seeks, based on the monthly wage of KRW 2,197,404 (=9,882 won for urban daily wage of KRW 99,882 x 22 days) the daily income shall be calculated from May 10, 2016, which is the death day of the deceased until November 13, 2039, which is the maximum working age.

(c) Deductions for living expenses: 1/3;

4) Calculation: as stated in the column of “actual income” in the separate sheet of calculation of damages.

(b) Funeral expenses: 5,000,000 won.

C. Limitation on liability

1) Liability ratio of the Defendants: 35%

(ii)Calculation;

○’s lost income: 95,478,595 won (=272,795,987 won x 35%)

Funeral expenses paid by the Plaintiff: 1,750,000 won (=5,000,000 won x 35%)

(d) Mutual aid or offsetting profits and losses;

1) Of the amount of KRW 17,755,230 of the deceased’s medical expenses already paid by the Defendant Cooperative, the amount of KRW 11,540,89 on the part pertaining to the deceased’s negligence (i.e., KRW 17,755,230 x 65%) deducted from the lost income of the deceased.

2) The Defendant’s association’s deduction of KRW 10,000,000 paid to the Plaintiff as part of the amount of damages from the deceased’s lost income

(e) consolation money;

1. Reasons for consideration: All the circumstances shown in the arguments of the instant case, including the developments leading up to the instant accident, the age and degree of negligence of the Deceased, the personal relationship between the Deceased and the Plaintiff, and the fact that B deposited KRW 30,000 with the Plaintiff as the depositee, etc.

2) The amount recognized

A) Deceased: 15,000,000 won

B) Plaintiff: 5,000,000 won

F. Sub-decision

Therefore, the Defendants jointly have a duty to jointly pay the Plaintiff damages amounting to KRW 95,687,696 (i.e., KRW 73,937,696 in the inherited portion of the deceased’s lost income + KRW 15,750,00 in the inherited portion of funeral expenses + KRW 15,750,000 in the inherited portion of consolation money + KRW 5,000 in the Plaintiff’s consolation money + KRW 5,000 in the Plaintiff’s consolation money after the date of the instant accident, as sought by the Plaintiff, to dispute on the existence and scope of the Defendants’ duty of performance from May 10, 2016 until August 25, 2017, which is the date of the instant judgment, and damages for delay by 15% per annum under the Civil Act, which is the date of the instant judgment, from the next day to the date of full payment.

3. Conclusion

Therefore, the plaintiff's claim against the defendants is justified within the scope of each of the above recognition, and each of the remaining claims is dismissed as it is without merit. It is so decided as per Disposition.

Judges Seo-su

A person shall be appointed.