Plaintiff (Law Firm LLC, Attorneys Final Won-won, Counsel for plaintiff-appellant)

Furthermore, the Insurance Co., Ltd. (Attorney Kim Jong-tae, Counsel for defendant-appellant)

October 26, 2017

Daejeon District Court Decision 2012Gadan43703 Decided May 12, 2016

1.The judgment of the first instance shall be modified as follows:

A. The defendant shall pay to the plaintiff 52,781,375 won with 5% interest per annum from July 10, 2009 to December 7, 2017, and 15% interest per annum from the next day to the day of complete payment.

B. The plaintiff's remaining claims are dismissed.

2. 3/4 of the total litigation costs is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

3. The portion of payment of the money referred to in paragraph 1(A) may be provisionally executed.

1. Purport of claim

The defendant shall pay to the plaintiff 430,409,806 won with 5% interest per annum from July 10, 2009 to the first instance judgment, and 15% interest per annum from the next day to the day of full payment.

2. Purport of appeal

A. The plaintiff

The part of the judgment of the court of first instance against the plaintiff shall be revoked. The defendant shall pay to the plaintiff 188,707,593 won with 5% interest per annum from July 10, 2009 to the date of the judgment of the court of first instance, and 15% interest per annum from the next day to the date of full payment.

B. Defendant

Of the judgment of the court of first instance, the part against the defendant ordering the plaintiff to pay in excess of 5% per annum from July 10, 2009 to the date of the judgment of the court of first instance, and 15% per annum from the next day to the date of full payment, and the part against the defendant ordering the plaintiff to pay in excess of 75 million won per annum, and the plaintiff's claim corresponding to the above revoked part is dismissed.

1. Basic facts

(a) Status of a party and circumstances in which a traffic accident occurred;

1) The Defendant Company is an insurer who entered into an automobile comprehensive insurance contract with Nonparty 1 regarding (vehicle number omitted)-surged vehicles (hereinafter “Defendant vehicle”).

2) At around 16:05 on July 10, 2009, Nonparty 2, the driver of the Defendant vehicle, was changed to a stop signal from the four-distance off off the offline of the front line of the Seo-gu Daejeon-gu Daejeon, Seo-gu, Seo-gu to the offline of the airbrison. However, even though the signal, etc. was changed to a stop signal, Nonparty 2, the driver of the Defendant vehicle, the driver of the Defendant vehicle, had the Plaintiff’s motor bicycle driven under the Plaintiff’s credit on the same road while driving in violation of the signal, the same road was changed to a stop signal (hereinafter “the instant traffic accident”). As a result, the Plaintiff suffered from the injury, such as acute climatic, trineed salt, brain sin, the right legle, and the downline, etc.

B. The plaintiff's treatment progress and the diagnosis of combined perjury

1) After the instant accident, the Plaintiff received hospitalized treatment from the members of the △△ Hospital from July 10, 2009 to August 28, 2009 (50 days), from the △△ Hospital from August 31, 2009 to September 10, 2009 (11 days), from the △△ University Hospital from the △△ Hospital from September 11, 2009 to October 23, 209 (43 days), from the △△ University Hospital from September 28, 2010 to the △△ University Hospital from September 23, 2009 (4 days).

2) On November 15, 2010, the Plaintiff was diagnosed by the Complex Madrome (hereinafter referred to as “CRPS”) 1 type at △△△ University Hospital on 15, 2010. On November 19, 2010, the Plaintiff received the final diagnosis of the CRPS type 1 and the post-depth stress disorder.

3) 원고는 2011. 4. 5. ▽▽대학교병원에서 CRPS 1형의 최종 진단을 받았고, 향후 추가적 검사와 치료(척수자극기삽입술 포함)가 필요하다는 내용의 진단서를 받았고, ◎◎◎◎◎병원에서 CRPS 1형으로 진단받아 2011. 8. 9. 양쪽 하지에 척수자극기 삽입 수술을 받았고, 2014. 4.경 양쪽 상지에 척수자극기 삽입 수술을 받았다.

4) 원고는 CRPS 증상의 치료를 위해서 ◎◎◎◎◎병원에서 2011. 8. 8.부터 2011. 8. 29.까지(22일간), 2012. 3. 27.부터 2012. 4. 14.까지(19일간), 2013. 1. 4.부터 2013. 1. 11.까지(8일간), 2013. 7. 16.부터 2013. 8. 17.까지(33일간), 2013. 10. 22.부터 2013. 11. 14.까지(24일간), 2013. 12. 10.부터 2014. 1. 18.까지(40일간), 2014. 4. 1.부터 2014. 4. 30.까지(30일간) 입원치료를 받았다.

5) The Plaintiff disbursed KRW 1,722,603 from April 1, 2014 to April 30, 2014, and KRW 1,165,725 from December 23, 2015 to January 21, 2016 to treat the said CRPS symptoms.

C. Payment of part of the medical expenses and damages incurred by the defendant company

1) The Defendant Company paid totaling KRW 110,908,906 to the Plaintiff KRW 137 times from October 13, 2009 to September 28, 2017, in the name of medical expenses for injury caused by the instant traffic accident.

2) 또한 피고 회사는 원고에게 손해배상금 명목으로 2011. 9. 23.부터 2014. 4. 3.까지 5회에 걸쳐 64,000,000원을, 제1심 판결 선고 이후인 2016. 6. 2. 100,000,000원을 각 지급함으로써 합계 164,000,000원을 지급하였다.^P [인정 근거] 다툼 없는 사실, 갑 제1호증 내지 갑 제4호증, 갑 제7호증, 갑 제8호증, 갑 제12호증, 갑 제13호증, 갑 제15호증, 갑 제16호증, 갑 제18호증 내지 갑 제23호증, 을 제1호증 내지 을 제11호증(각 가지번호 포함)의 각 기재, 변론 전체의 취지

2. Occurrence of liability for damages;

A. Defendant Company’s liability for damages

According to the facts acknowledged above, since the traffic accident in this case occurred due to the negligence of Nonparty 2, who is the driver of the defendant vehicle, in violation of the stop signal at the time of the traffic accident in this case, the defendant company which entered into the comprehensive automobile insurance for the defendant vehicle, is obligated to compensate the plaintiff for the damage caused by the

B. Determination as to the Defendant Company’s assertion

1) According to the results of the fact-finding conducted by the court of first instance, the Defendant Company asserted that the Plaintiff could not be recognized as having claimed the CRPS symptoms due to the instant traffic accident. The Defendant Company asserted that the Plaintiff could not be recognized as having claimed the CRS symptoms due to the instant traffic accident.

2) 그러나 위 기초사실 및 앞에서 든 각 증거들, 제1심 법원의 아주대학교병원에 대한 신체감정촉탁결과 및 사실조회결과, 당심의 순천향대학교 서울병원에 대한 신체감정촉탁결과에 변론 전체의 취지를 종합하여 알 수 있는 다음과 같은 사정들, 즉 ① CRPS를 확진할 수 있는 단일 검사는 없으나 환자에게 나타나는 증상 및 징후를 조사하고, 임상검사 및 기타 정밀검사를 종합하여 진단을 내리게 되는데, 현재 의학계에서는 CRPS 판정 기준으로 세계통증의학회(IASP) 수정진단기준(2004년판)과 AMA 제6판 장애평가표(2008년판)를 사용하고 있으며, 반드시 AMA 제5판만을 기준으로 CRPS를 판정하여야 하는 것은 아닌 점, ② 원고는 이 사건 교통사고 이후 2010. 11. 15. ☆☆☆☆대학교병원에서 처음으로 CRPS 1형 진단을 받았는데, 당시의 진단에 의하면 그 발병일은 이 사건 교통사고 발생일인 2009. 7. 10.로 되어있고, 이는 그 이후에 ◇◇대학병원, ▽▽대학교병원, ◎◎◎◎◎병원에서 받은 CRPS 진단에서도 동일하였던 점, ② 제1심 법원 및 당심에서 실시한 신체감정촉탁결과에 의하더라도 이 사건 교통사고로 인하여 원고의 CRPS 증상이 발생한 것으로 보이는 점, ③ 실제로 원고는 CRPS 증상을 치료하기 위하여 2011. 8. 9. 양쪽 하지에, 2014. 4.경 양쪽 상지에 각 척수자극기 삽입 수술을 받았고, 그 이후에도 현재까지 지속적으로 병원치료를 받고 있는 점 등에 비추어 보면, 원고가 현재 CRPS 증상을 보이고 있고, 이는 이 사건 교통사고로 인한 것임을 넉넉히 인정할 수 있다. 따라서 피고 회사의 위 주장은 받아들일 수 없다.

C. Sub-committee

Therefore, the Defendant Company is obligated to compensate the Plaintiff for all damages caused by the injury, including the CRPS, caused by the instant traffic accident.

3. 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 the corresponding 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 last month shall be discarded. The current value calculation at the time of the accident shall be governed by the simple interest rate which deducts the interim interest at the rate of 5/12 per month. Moreover,

(a) Actual income:

(i) income and operating period;

Inasmuch as there is no proof on the plaintiff's income, it is reasonable to apply the urban daily wage of the ordinary person, and the operating period shall be until the date when the plaintiff reaches the age of 60.

(ii)competence;

A) Relevant legal principles

(1) The labor disability loss rate is not merely a medical disability rate, but also a victim’s age, nature of the previous occupation, career and skill skill training, degree of physical disability, occupational expertise in similar occupation or other occupation, and its probability and probability, and other social and economic conditions, and it is required that the judge’s arbitrary exclusion is reasonable and objective (see Supreme Court Decision 87Meu229, Jul. 21, 1987).

(2) In a case where the method of calculating the lost income amount of the victim who suffered from a disability that occurred in the combined confluence medical group due to a traffic accident is at issue, it is difficult to view that assessing the rate of loss of labor ability of the patient with multiple confluences after multiple confluences by using the Mabrid List where there is no content of suggesting separate criteria for determination as to the combined confluences or similar pain disorders, and thus, it is reasonable and objective to assess the rate of loss of labor ability of the patient with multiple confluences, using the Mabrid List where there is no content suggesting separate criteria for determination as to any existing one (see Supreme Court Decision 2009Da7198,

B) Determination

(1) According to the result of the court of first instance’s commission of physical examination of the Amin University Hospital and the results of fact inquiry, where the Plaintiff’s labor disability loss rate due to CRPS due to the instant traffic accident is calculated by applying mutatis mutandis the CRP disability assessment method, 33% or 50%, but the above method of labor disability assessment is difficult to be deemed reasonable and objective in light of the aforementioned legal principles.

However, according to the result of physical entrustment by the court of the first instance to AMA hospitals, the labor disability rate based on the AMA No. 6 is equivalent to 15% (reasonable 16-14 and 16-15). In light of the fact that current medical academic circles are using the CRP test criteria for revision of the AMAP (ISP) and the AMA No. 6 disability assessment table (2008 board), the above evaluation of labor disability rate seems to be reasonable and objective.

(2) Furthermore, according to the fact-finding conducted by the court of first instance, the possibility of recovery cannot be completely ruled out even though the Plaintiff’s CRPS symptoms are low possibility of recovery in the future, but the possibility of recovery cannot be fully ruled out due to appropriate treatment. However, patients with symptoms and signs of CRPS continued for more than several years without defense or loss at the beginning are highly likely to suffer chronic possibility, most of them are difficult to recover, and in the case of the Plaintiff, most of them are difficult to recover. Since July 10, 2009, there seems to be little possibility of recovery in view of the Plaintiff’s continued pain. Accordingly, it is reasonable to see the above disability as permanent disability.

(iii) the loss rate of labor capacity by duration;

A) From July 10, 2009 to April 19, 2010: 10% (in the case of hospitalization period):

B) From April 20, 2010 to August 31, 2035 (At the end of this year): 15 percent

4) Calculation: 75,510,879 won (the same shall apply to the entry in the column of "actual income" in the attached Form for calculation of damages).

(b) The king medical expenses;

The fact that the Plaintiff paid KRW 2,88,328, in total, KRW 1,722,603 from April 1, 2014 to April 30, 2014, and KRW 1,165,725 from December 23, 2015 to January 21, 2016, to treat the CRPS symptoms caused by the instant traffic accident is as seen earlier.

(c) Future treatment costs;

1) With respect to sex capital affairs:

According to the result of the physical examination entrusted by the court of the first instance to Aju University Hospital, the Plaintiff may recognize the fact that the Plaintiff required anti-scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic spucks

(ii) relating to the field of narcotics and pains;

(A)the cost of replacing multiple arbitraris;

(1) On August 9, 201, the Plaintiff undergone a scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopicscopics on both sides around April 2014. In full view of the results of fact inquiries by the court of first instance, the results of physical examination by the court of first instance, etc., the average scopic scopic scopic scopic scopic scopic scopicscopic scopic scopic scopicscopic scopicscopic scopicscopic scopicscopicscopics (Plaintiffs

(2) Therefore, once every nine years from August 9, 2020, which was nine years after the operation on both sides, it is calculated that the Plaintiff spent on April 1, 2023, 202, which was nine years after the operation on both sides, once every nine years from the operation on April 1, 2023, which was nine years after the operation on both sides. The Plaintiff seems to have continued to provide pain until the present day after July 10, 209, and it is difficult to recover symptoms.

(3) Ultimately, the cost of replacing a shipper calculated at the present price at the time of the instant accident is KRW 63,942,00, such as the cost of replacing a shipper (=32,947,500 cost of replacing a shipper + KRW 30,994,500).

(B) preserved treatment costs;

(1) The following facts can be acknowledged in full view of the aforementioned facts and the evidence as seen earlier, and the purport of the entire pleadings as a result of the court’s commission of physical examination to the Aju University Hospital in the first instance.

(A) The CRPS patients are not fundamental treatment of the cause of pain, and there are many cases where the therapy of the therapy remains pain even after inserting the therapy, so continuous pharmacologic treatment and arbitration is required. The Plaintiff has continuously conducted pharmacologic treatment and arbitration after the instant traffic accident until now. Accordingly, in the future, it is necessary to treat the relevant therapy once a month in the future, 9,014,520 won [751,210 won (16,000 won/per 16,000 won/per 16,000 won/per year, and 200,000 won/per-year, and 73,000,000 won/per-year, and 70,000 won/per-day, and 90,000 won/per-day, and 10,000,00 won/per-day, and 13,015 won/per-day, 205 won/per-day, etc.).

(B) The CRPS patients have recovered from anti-competitive drugs, anti-psychotropic drugs, anti-psychotropic drugs, and drug truth control to control pains. Although these drugs have different frequency of side effects, they are likely to cause side effects, most of the CRPS patients are likely to have side effects by taking drugs for a long time. Since most of the CRPS patients have spent drugs for a long time after the instant accident, they have taken drugs that may cause complications for a long time after the instant accident. The Plaintiff has taken drugs that may cause side effects, and have undergone a general blood test, etc. to confirm side effects. Accordingly, in the future, it is necessary to conduct a test once every three months in the future, and 1,040,000 won (260,000 won (150,000,000 won and general chemical tests, 110,000 won and 4 times) per year.

(2) Therefore, the Plaintiff requires the annual aggregate of KRW 10,054,520 ( KRW 9,014,520 + KRW 1,040,000) as the preserved treatment costs. Considering that the current price at the time of the instant accident was paid every one year from October 27, 2017 following the date following the closing of argument in the instant case, it would be KRW 190,93,651, as shown in the attached table of damages calculation.

3) The Defendant Company asserted that the medical fees should be calculated in the future based on the motor vehicle insurance medical fees stipulated in the Guarantee of Automobile Accident Compensation Act. However, the victim of the traffic accident can receive compensation for the actual amount of damages within the scope of causation with tort as the medical fees for the traffic accident. Therefore, the scope of the medical fees for the pertinent medical treatment act should be reasonably determined in consideration of all the circumstances, including the degree of injury, treatment details, frequency of treatment, and the amount of general medical expenses of the medical society, such as medical fees. The criteria for motor vehicle insurance medical fees under the Guarantee of Automobile Accident Compensation Act has the meaning of the criteria to guarantee appropriate medical treatment for the motor vehicle accident patients, and to prevent disputes between the insurer, etc. and the medical institution, and it does not constitute an absolute basis for calculating the amount of the medical fees suffered by the victim due to the accident (see, e.g., Supreme Court Decision 2008Da41574, 41581, Oct. 23, 2008).

(iv) the aggregate of the future treatment costs;

257,392,288 won (=2,456,637 won for surgery of antiscopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scopic scop

D. Limitation on liability

1) Whether the Plaintiff was negligent in the instant traffic accident

A) At the time of the instant traffic accident, the Defendant Company asserted that: (a) at the time of the instant traffic accident, the Plaintiff met the signal signal front of the intersection; and (b) the vehicles coming from other directions enter the intersection at the end of the signal; (c) as such, the Plaintiff had a duty of care to safely drive the vehicle in a different direction, such as the Defendant’s vehicle, even if he had a duty of care to safely drive the vehicle by checking the movement of the vehicle in a different direction; (d) there was an error in the Plaintiff’s failure to wear the safety cap.

B) However, there is no evidence to prove that the Plaintiff did not wear a safety mother at the time of the instant traffic accident, or that the Plaintiff was forced to change to a ongoing signal, and there is no other evidence to prove the Plaintiff’s negligence. Accordingly, the above assertion by the Defendant Company cannot be accepted.

2) Whether limitation of liability for the defendant company is limited

A) Where a harmful act and the factors on the part of the victim occur or expanded as a result of the concurrent act, even if the factors on the part of the victim are irrelevant to the causes on the part of the victim, such as the risk of physical talented cattle or disease, in cases where the tortfeasor’s compensation for the whole damage in light of the form, degree, etc. of the disease is contrary to the principle of fairness, the court may consider the factors on the part of the victim who contributed to the occurrence or expansion of the damage by applying the legal doctrine of comparative negligence in determining the amount of compensation for damage (see, e.g., Supreme Court Decision 2009Da7198, 77204, Apr. 13, 2012).

B) The CRPS is a disease that has not yet been discovered to be completely caused by the human being. It can be caused by a minor external wound compared to the serious symptoms of the patient complaining for. The frequency of occurrence also is one person per 2,000 trauma patients, and there is a research report on the fact that it is only 1-2% of the total patient in the case of an alley patient, and the degree of risk or result is extremely high. Therefore, it is inappropriate in light of the legal purport of the damage fair burden. In addition, it is appropriate for the Defendant to compensate for all damages caused by the disease in light of the circumstance of the accident in this case, the degree and degree of injury, the weight of damage caused by the disease in the damage in this case, the progress of treatment, the degree of harm caused by the aftermath, and the amount of treatment fees in the future, etc., the amount of damage to be compensated by the Defendant is limited to 70% of its liability.

(iii) calculation;

235,054,046 won = (the actual income of KRW 75,510,879 + the treatment expenses of KRW 2,88,328 + future treatment expenses of KRW 257,392,28) x 70/100]

(e) Mutual aid;

1) Medical expense credit

A) The fact that the Defendant Company paid the Plaintiff totaling KRW 110,908,906 from October 3, 2009 to September 28, 2017 under the name of medical treatment. It is reasonable to limit the Defendant Company’s liability to 70% with respect to the Plaintiff’s damage related to the instant traffic accident as seen earlier.

B) Accordingly, 33,272,671 won (=10,908,906 won x 30%) equivalent to 30% of the medical expenses paid by the Defendant Company (i.e., 110,908,906 won) shall be deducted.

2) Deduction of damages

A) The fact that the Defendant Company paid KRW 64,00,000 to the Plaintiff on five occasions from September 23, 2011 to April 3, 2014, when the first instance court had been continuing as the compensation for damages, and paid KRW 164,00,000 in total by paying KRW 164,000,000 on June 2, 2016 after the first instance judgment was rendered. As seen earlier, it is reasonable to deduct all of the Plaintiff’s property damages from the Plaintiff’s loss.

B) The Plaintiff asserted that the damages for delay should be first appropriated from the amount acknowledged in the judgment of the first instance court in accordance with the order of statutory appropriation, inasmuch as the Plaintiff and the Defendant Company appealed to the Plaintiff and the Defendant Company did not confirm the amount of damages to be paid to the Plaintiff, and the Defendant Company did not have paid the above amount with the intent to first repay the damages for delay recognized in the judgment of the first instance court, taking into account the following: (a) the Plaintiff and the Defendant Company paid the damages for delay on June 2, 2016, which were paid by the Defendant; and (b) the Defendant Company did not have paid the above amount with the intent to first repay the damages for delay recognized in the judgment of the first instance.

3) Sub-decisions

Ultimately, if the Defendant deducts the amount of medical expenses and damages as above, the Plaintiff’s property damages such as KRW 37,781,375 (i.e., property damages 235,054,046) - the deducted amount of liability limitation out of the medical expenses - KRW 33,272,671 (i.e., property damages - KRW 164,00,000).

F. The consolation money shall be 15,00,000 won in consideration of all the circumstances revealed in the pleadings of the instant case, including the developments leading up to the instant traffic accident, the parts and degree of the disability, and the Plaintiff’s age.

G. Sub-committee

Therefore, the defendant is obligated to pay to the plaintiff 52,781,375 won (=property damage 37,781,375 won + solatium 15,00,000) and to pay damages for delay at each rate of 5% per annum under the Civil Act from July 10, 2009, which is the traffic accident day of this case until May 25, 2017, which is the date when the judgment of the court is rendered by the defendant, to the extent of the existence and scope of the obligation to perform; and 15% per annum under 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 of this case is justified within the above scope of recognition, and the remaining claims shall be dismissed without merit. Since the judgment of the court of first instance that has concluded a different conclusion is unfair, it is so decided as per Disposition (the defendant company has only objection to the order of payment in excess of KRW 75,00,00 to the plaintiff among the judgment of the court of first instance in the purport of appeal, and the compensation amount paid by this court is less than the above amount, but this is derived from offset by this court after the judgment of the court of first instance was paid by the defendant company as part of the compensation amount to the plaintiff after the judgment of the court of first instance, and the court of first instance deducted it from the total compensation amount initially accepted as a set-off and deducted it from the set-off by the court of first instance. Accordingly, the court of first instance and the appellate court cannot be deemed to have affected the plaintiff)

[Attachment]

Judges Choi Byung-su (Presiding Judge)

(1) The period of hospitalization of the Plaintiff shall be 50 days from July 10, 2009 to August 28, 2009; 11 days from August 31, 2009 to September 10, 209; 43 days from September 11, 2009 to October 23, 209; 4 days from September 28, 2010 to October 1, 201; 22 days from August 8, 201 to August 29, 201, from March 14, 201 to August 14, 201; or from August 13, 201 to August 14, 201; and 13 days from March 27, 2012 to April 14, 2013; 13.