2018Da203920 Damages (i)

A

Law Firm Woo-man, Counsel for the plaintiff-appellant

[Defendant-Appellee]

E Company

Law Firm (LLC) Mailing, Counsel for the defendant-appellant

Attorney Kim Hyun-young, and Park Dong-ho

Seoul Central District Court Decision 2016Na82685 Decided December 8, 2017

6, 2018

The part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the Seoul Central District Court. The remaining appeal is dismissed.

The grounds of appeal are examined.

1. As to the ground of appeal No. 1, determination of the fact-finding or the ratio of comparative negligence in a tort compensation case is within the discretionary authority of the fact-finding court, unless it is deemed that it is considerably unreasonable in light of the principle of equity (see, e.g., Supreme Court Decision 2001Da62251, 6268, Jan. 8, 2002).

Examining the above legal principles in light of the records, the judgment below which limits the defendant's liability to 90% on the ground that the plaintiff was negligent in not wearing the safety belt, cannot be remarkably unreasonable in light of the principle of equity. Therefore, the judgment below does not accept the allegation in the grounds of appeal that the court below erred by misapprehending the legal principles as to comparative negligence

2. Examining the ground of appeal No. 2 in light of the relevant legal principles and records, the lower court did not err by misapprehending the legal principles as to the calculation of nursing costs, failing to exhaust all necessary deliberations, or by violating the rules of evidence, on the grounds stated in its reasoning, that the Plaintiff requires the opening of six hours per day by an adult.

3. As to the ground of appeal No. 3, where a victim who received insurance benefits pursuant to the National Health Insurance Act claims for damages against a third party, and where the victim’s negligence competes with the third party, the amount of damages calculated first shall be offset by negligence, and insurance benefits shall be deducted from the amount of damages calculated first, and even where the victim voluntarily deducted insurance benefits and claimed damages, the amount of damages subject to comparative negligence shall include insurance benefits (see, e.g., Supreme Court Decision 2010Da2428, 2435, Jul. 15, 2010).

According to the records, the plaintiff is entitled to affirmative damage by deducting the insurance benefits of the National Health Insurance Corporation, and the defendant is entitled to claim reimbursement from the National Health Insurance Corporation for the amount of the plaintiff's insurance benefits and accordingly, paid 3,952,750 won.

However, in light of the legal principles as seen earlier, in calculating the amount of damages for the Plaintiff’s active damages, the lower court should offset the amount of insurance benefits by negligence from the aggregate amount of the pre-treatment cost and the insurance benefits for the Plaintiff recognized by the lower court, and even if the amount of insurance benefits should be deducted, the lower court did not include the above insurance benefits as active damages and deducted the total amount of the insurance benefits again. In so doing, the lower court erred by misapprehending the legal principles on comparative negligence and loss

4. Conclusion

Therefore, the part of the judgment of the court below against the plaintiff is reversed, and that part of the case is remanded to the court below for further proceedings consistent with this Opinion. The remaining appeal is dismissed. It is so decided as per Disposition by the assent of all participating Justices on the bench.

Justices Park Sang-ok

Justices Kim In-bok, Counsel for defendant

Justices Lee Dong-won