[1] In the case of a tort at an interval of time between the harmful act and the actual damage caused thereby, the meaning of "the date on which the damage claim becomes known", which serves as the starting point for the extinctive prescription of damage liability, and in the case of a case where any symptoms have arisen during the process of treatment for a considerable period of time after the harmful act on the body was committed and the damage was realized, the method for the court to determine "the date

[2] In a case where Gap was involved in a traffic accident more than 15 months after being suffering from brain damage, etc. and continued medical treatment by showing symptoms, such as a little developmental handicap, etc., during six years of age, and diagnosis of dementia and major recognition disorders was issued as a result of physical assessment in the first instance court, the case holding that the judgment below erred by misapprehending legal principles, which found that Gap was aware of the occurrence of damage at the time of the traffic accident, and that the date of the occurrence of the traffic accident becomes the starting point for extinctive prescription for the claim for damages due to tort

[1] A claim for damages due to a tort shall commence from the date when the victim or his legal representative becomes aware of the damage and the perpetrator. In the case of a tort at a time interval between the harmful act and the actual damage caused by this act, the date when the victim became aware of the tort, which is the starting point of the extinctive prescription, is insufficient only to the extent that there was awareness of the damage inflicted on the victim in a conceptual and dynamic state. In this case, if any symptoms have occurred during the process of treatment for a considerable period after the harmful act on the body was committed and the damage was realized, the court must carefully consider that the victim knew, or could have known, of the actual fact before the victim’s final diagnosis or the court’s appraisal. In particular, if the victim’s age at the time of the harmful act was committed, or when the victim’s age was seriously raised and growth activity, or when the possibility of the first damage was high or high depending on the growth and growth of the damaged father(s) and thus, it can be concluded that there was no possibility of the first diagnosis or possibility after the diagnosis at the age level, etc.

[2] In a case where Party A suffered from 15 months of age from a traffic accident and sustained treatment by showing symptoms, such as brain damage, and diagnosis of dementia and major recognition disorders as a result of physical examination in the first instance court during the age of six years, the case holding that it is difficult to conclude that the damage was realized due to verbal disorder, etc. immediately after the accident, and further, Party A or his legal representative was found to have failed to know about the type and degree of disability as well as the starting point of the traffic accident at the time of the traffic accident after considering the following factors: (a) the treatment progress and symptoms were generated; (b) the time when the accident occurred; (c) the first damage occurred; and (d) the first diagnosis process and degree; and (d) the final diagnosis process and name of the patient; and (e) it is difficult to find that Party A or his legal representative could not cause any disability if the situation of Party A aggravated even at the time of the accident; and (e) there was no sufficient room to deem that the starting point of the traffic accident occurred at the time of the traffic accident accident.

[1] Articles 750 and 766(1) of the Civil Act / [2] Articles 750 and 766(1) of the Civil Act

[1] Supreme Court Decision 92Da29924 delivered on December 8, 1992 (Gong1993Sang, 431) Supreme Court Decision 2000Da11836 delivered on January 19, 201 (Gong2001Sang, 500)

Plaintiff (the Nonparty, a person with parental authority, who is a minor) (Law Firm Cho & Kim, Attorneys Cho Jae-chul et al., Counsel for the plaintiff-appellant)

Music Insurance Co., Ltd. (Law Firm Han-chul, Attorneys Kim Nam-sung et al., Counsel for the plaintiff-appellant)

Seoul Central District Court Decision 2014Na52987 Decided December 3, 2015

The judgment of the court below is reversed, and the case is remanded to the Seoul Central District Court Panel Division.

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. A claim for damages due to a tort begins from the date when the injured party or his legal representative becomes aware of the damage and the perpetrator. In the case of a tort at a time interval between the harmful act and the actual damage, the date when the injured party becomes aware of the damage which is the starting point of the extinctive prescription is insufficient only to the extent that the injured party was aware of the damage which was diving in a conceptual and dynamic state, and the date when such damage became actual (see, e.g., Supreme Court Decisions 92Da29924, Dec. 8, 1992; 200Da11836, Jan. 19, 2001). If, after the harmful act on his body occurred, any symptoms have occurred in the process of treatment for a considerable period of time and the damage was realized, the court needs to have a very careful mind to acknowledge that the injured party was aware of or could have been aware of the fact before the injured party’s final diagnosis or the court’s appraisal result, such as the victim’s first diagnosis or growth at the time of age.

B. The lower court determined that the Plaintiff’s right to claim damages was extinguished upon expiration of the prescription period, inasmuch as the Plaintiff claimed damages to the Defendant on March 21, 2012, even though the Plaintiff was aware of the damages caused by the instant accident and the perpetrator, on March 2006, of the damages incurred by the instant accident, pursuant to Article 724(2) of the Commercial Act, on the part of the Defendant, who is the insurer.

C. However, we cannot accept the judgment of the court below.

1) The record reveals the following facts.

A) On March 2006, the Plaintiff (date of birth omitted) suffered the instant accident, around 15 months, around March 2006, and the medical certificate written after the lapse of 2 months thereafter stated that “A medical certificate column for the medical certificate was “I need to observe the intensive observation of the development of continuous psychotropic development, merger, liveration, etc.” in the column of the medical certificate for the medical examination written after the lapse of 2 months.

B) After the instant accident, the Plaintiff appeared to show a few symptoms, such as the development trend, even after continuously treating the symptoms. However, from April 2007, the Plaintiff appeared to have been showing the development stage significantly following the occurrence of the balves around January 2008.

C) On November 201, 201, the Plaintiff was at the age of six (6), medical disability diagnosis was issued for the first time, stating that “A diagnosis column of the medical certificate drawn up around November 201, stating that “A diagnosis is accompanied by a dratical paralysis, a dratical satisfy, a satisfe, a dratical satch, a verbal disorder, and a dratical satisf.”

D) In the physical appraisal conducted around January 201, 2014 during the first instance trial, the Plaintiff was diagnosed as “a dementia and major recognition disorder.”

E) Meanwhile, the Plaintiff, after the instant accident, continued to receive medical expenses from the Dongbu Fire Insurance Co., Ltd., the insurer of the other joint tortfeasor, on or around March 2012, immediately before the instant lawsuit was filed, agreed with the Dongbu Fire Insurance Co., Ltd., and was paid damages accordingly.

2) Examining the above facts in light of the legal principles and records as seen earlier, immediately after the instant accident, there were several symptoms, such as the Plaintiff’s age, the part and degree of the first damage, and the final diagnosis process or the name of sick person, etc., it is difficult to conclude that, immediately after the instant accident, the Plaintiff could not have suffered damage from language disorder, i.e., “language disability or practical pain,” as a result of appraisal, i.e., dementia, and major cognitive disorder, as the treatment was continued, even if the symptoms such as the developed body, etc. were worse, and thereafter, the symptoms related to the above name were gradually revealed. In full view of the following factors: (a) the time when the instant accident occurred, along with the process and degree of treatment, the Plaintiff’s age at the time of the instant accident, the part and degree of the first damage, and the final diagnosis process or the name of sick person; (b) it is difficult to conclude that the Plaintiff or his legal representative could have been aware of the occurrence of a serious disability as well as the injury to the Plaintiff’s or his legal representative.

3) Nevertheless, without sufficiently examining such special circumstances, the lower court concluded that the Plaintiff was aware of the fact immediately after the instant accident. In so doing, the lower court erred by misapprehending the legal doctrine on the starting point of the extinctive prescription period, thereby failing to exhaust all necessary deliberations. The allegation contained in the grounds of appeal on this point is with merit.

2. Conclusion

Therefore, without further proceeding to decide on the remaining grounds of appeal, the lower judgment is reversed, and the case is remanded to the lower court for further proceedings consistent with this Opinion. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Jo Hee-de (Presiding Justice)