(영문) 대전지방법원 서산지원 2020.10.22. 선고 2020가합50364 판결

1. The Defendant shall pay to the Plaintiff 150,869,988 won with 5% interest per annum from July 11, 2016 to October 22, 2020, and 12% interest per annum from the next day to the day of full payment.

2. The plaintiff's remaining claims are dismissed.

3. Of the litigation costs, 60% is assessed against the Plaintiff, and the remainder is assessed against the Defendant, respectively.

4. Paragraph 1 can be provisionally executed.

Purport of claim

The defendant shall pay to the plaintiff 381,931,304 won with 5% interest per annum from July 11, 2016 to the service date of a copy of the claim of this case and the application for modification of the cause of the claim of this case, and 12% interest per annum from the next day to the day of complete payment.

Reasons

1. Facts of recognition;

가. 원고는 'C'라는 상호로 고소작업차 임대업을 영위하는 사람으로 D 고소작업차(이하 '이 사건 고소작업차'라 한다)의 소유자이고, 피고는 유리 · 샷시 등 시공업을 영위하는 개인사업자이다.

B. On July 2016, the Defendant leased the instant complaint work vehicle from the Plaintiff and employed a free G in order to perform the work of free installation, such as the installation of glass on the building newly constructed in F from the Plaintiff, which was contracted out by the Defendant.

C. On July 11, 2016, the Plaintiff operated the instant vehicle by means of moving the work site of the instant vehicle at the construction site of the said new building to the part requiring work, and G was on board the said work site and installing favorable to the outer wall of the building.

As such, while the Plaintiff was engaged in work together with G, he would be able to assist the Plaintiff in getting favorable by boarding the said work unit at the request of G upon the request of G on board the said work unit. While continuing to install favorable on the second floor of the outer wall of the building, there was an accident that is far away from the third floor of the outer wall of the building installed first by G on the third floor and shocking the Plaintiff’s right hand, etc. (hereinafter “instant accident”).

D. The Plaintiff was injured by the instant accident, i.e., the injury to the right hand hand hand hand and fingers, such as the damage of the knife and knife.

[Ground of recognition] Facts without dispute, Gap's statements in Gap's evidence Nos. 1 through 4, 6, 13 through 16 (including branch numbers), the purport of the whole pleadings

2. Summary of the plaintiff's assertion

The Defendant was negligent in not providing any safety education to the employees of G while not providing any safety education, and the Plaintiff suffered injury as the instant accident occurred due to negligence without properly fixing the glass during the glass installation work, which led to the Plaintiff. As such, the Defendant is liable to compensate the Plaintiff for the Plaintiff’s tort and liability for the employer’s tort as the employer of G.

Therefore, pursuant to Article 750 or 756(1) of the Civil Act, the Defendant is obligated to pay the Plaintiff damages for KRW 381,931,304 and damages for delay.

3. Determination

(a) Occurrence of liability for damages;

1) Grounds for liability

A) In light of the following circumstances revealed in light of the overall purport of the evidence duly admitted as seen earlier, it is reasonable to view that the instant accident was caused by negligence, even though the Defendant was a recipient of a contract for the construction work, such as glass, and G was obligated to take necessary measures to prevent accidents against another person during the work as the actual contractor, even though G was negligent in taking necessary measures to prevent accidents against physical harm.

① In the event that an employee conducts a glass installation work, the Defendant has a duty of care to prevent safety accidents by providing temporary fixed straws in advance and thoroughly managing and supervising the employee’s work in order to prevent the occurrence of an accident, which is far away from the temporarily installed glass prior to the completion of the mold, or resulting from the said employee’s failure to do so. At the time of the instant accident, the Defendant did not provide the employee with a fixed straws at the time of the instant accident, and did not thoroughly manage and supervise the employee’s work with G, whether G was in operation with the straws, and whether the employee was engaged in the work while fixing the straws, and there was no other evidence to deem that the Defendant took special measures to prevent safety accidents.

② Free-authorized G bears the duty of occupational care to prevent safety accidents by fixing the glass temporarily installed prior to the completion of the windows so as not to cause any accident, or resulting from the said work, if the Plaintiff was unable to board the shop of the instant complaint work or gets on board the workplace together with the said shop in the course of installing glass on the outer wall of the building. There is no evidence to deem that G did not take part in work, while carrying out work, did not have a sprink for a glass, did not fix the glass, nor did it otherwise take special measures to prevent safety accidents.

(3) If temporary glass is installed prior to the completion of the window of the outer wall of a building, it is sufficiently foreseeable that, unless it is fixed, it can be easily predicted that the glass can be broken away from the external shock or caused by the shock of the outside.

④ As to this, the Defendant asserts to the effect that the Plaintiff and G were unable to manage and supervise G as described in the above paragraph (1) due to the lack of the time when they were engaged in the glass installation work, and that there was no negligence on the occurrence of the instant accident. However, as alleged by the Defendant, the Defendant may instruct or educate G prior to the commencement of the work, as the Defendant was able to provide a fixed string of the glass prior to the commencement of the work, and to work at the time of the work, and thus, the Defendant’s allegation on this part is rejected

Therefore, the defendant is liable to compensate the plaintiff for the illegal acts that the plaintiff neglected the obligation to prevent the above accident as a beneficiary of the construction project or the employer of G for the illegal acts of G.

B) As to this, the Defendant asserted that the instant accident occurred due to the employee G’s act of requesting the Plaintiff to board the instant accusation work team along with the employee G to assist in the glass installation work. This act does not constitute the Defendant’s act of violating the safety regulations, but also constitutes the Defendant’s act of performing the Defendant’s business. Even if it falls under the act of performing the duties in appearance, the Plaintiff, who operated the accusation vehicle for a long time, knew that G’s act does not constitute the Defendant’s act of performing the duties, or was unaware of due to gross negligence, and thus,

However, as seen earlier, the instant accident can be deemed to have occurred far from G’s failure to fix the glass while carrying out a glass installation work, and since G’s act of such free installation work is obvious that it constitutes the Defendant’s act of performing its duties, the Defendant’s assertion on this part is not accepted.

2) Limitation on liability

However, in light of the following circumstances revealed in addition to the purport of the entire arguments, namely, ① the Plaintiff was on board the instant vehicle upon request from G, but the Plaintiff’s work site should not be on board, ② the Plaintiff did not wear safety appearance while working, etc., the Plaintiff’s negligence also caused the occurrence and expansion of damages caused by the instant accident. Therefore, it is reasonable to view that the Defendant’s fault ratio was 30% in calculating the amount of damages that the Plaintiff should compensate for, and thus, the Defendant’s liability ratio is limited to 70%.

(b) Scope of damages;

(i) lost earnings;

The Plaintiff’s loss of lost profits equivalent to the total monetary value of lost operating capacity due to the instant accident is based on the facts recognized as follows: (a) and the contents of the assessment as follows; (b) calculated at the present price as of the date of the instant accident by deducting intermediary interest at the rate of 5/12% per month pursuant to the Hofman Accounting Act, 192,317,764, which is calculated at the present price as of the date of the instant accident.

(A) the facts of recognition and evaluation;

(1) Personal information

Hems male, 35 years old and 10 months old at the time of the instant accident, and 45.19 years old

(2) The financial assessment of the operating capacity.

Considering the content of the Plaintiff’s work, the Plaintiff’s age, work experience, etc., it is reasonable to apply the market wage rate for each period of a cargo driver in a report on the investigation of the actual wage of construction business issued by the I Association.

On the other hand, the Plaintiff asserts that the daily income should be calculated by applying the unit price of heavy wage for a construction machinery operator of the above report. However, the above report is a driver (including at least 12t trucks) who operates and manipulates various construction machinery, and according to the notification of the Minister of Land, Transport and Maritime Affairs on May 1, 2015, the instant complaint vehicle is not a tunnel complaint work (it can be operated with a license for a pilot) according to the notification of the Minister of Land, Transport and Maritime Affairs as to the designation of a special construction machinery. Thus, since the instant complaint vehicle is not part of the construction machinery, the Plaintiff cannot apply the unit price of heavy wage for a while driving the construction machinery in the above report to the Plaintiff, the Plaintiff’s above assertion is rejected.

(3) Operating period and operating days.

22th day of each month between the age of 65 and the maximum working age

(4) The ratio of loss of future disability and labor ability.

From July 11, 2016 to August 20, 2016, the Plaintiff lost 100% labor ability during the hospitalization period, and from August 21, 2045 to August 21, 2045, the date of the hospitalization period to August 20, 2016, the Plaintiff lost 23.5% labor ability during the said period.

As to this, the Plaintiff asserts that 40% of the labor disability rate from the above hospitalization period to August 21, 2045 ought to be applied. According to the result of the physical appraisal of the appraiser, the appraiser appraised that, if the Plaintiff’s occupation is a construction machine driver, the Plaintiff lost 40% of the labor disability due to the accident in this case, but it is presumed that the Plaintiff’s occupation is premised on the Plaintiff’s construction machine driver, which cannot be deemed as the Plaintiff’s construction machine driver. Thus, it is difficult to view that the Plaintiff lost 40% of the labor disability due to the accident in this case, and there is no other evidence to prove otherwise. Accordingly, this part of the Plaintiff’s assertion is rejected.

[Ground of Recognition] Facts without dispute, the evidence mentioned above, Gap evidence Nos. 7, 8, and 11, the result of the appraiser's physical appraisal, the purport of the whole pleadings

B)Calculation

The sum of the number of days in which the following table is entered is KRW 192,317,764 (hereinafter the same shall apply).

A person shall be appointed.

(ii) Written treatment costs;

In addition to the above evidence and evidence No. 9’s overall purport of the pleadings, it is recognized that the Plaintiff spent KRW 1,782,220 in total as expenses for surgery, hospitalization, and outpatient medical expenses for injury inflicted by the instant accident. Thus, the king medical expenses that the Defendant is liable to compensate the Plaintiff are KRW 1,782,220.

3) Limitation on liability

As seen earlier, the Defendant’s liability ratio is limited to 70%.

4) Consolation money

In full view of the circumstances and results of the instant accident, including the Plaintiff’s age, negligence, and liability, the amount of consolation money against the Plaintiff is determined as KRW 15,00,000,000, in full view of the aforementioned evidence’s argument.

5) Sub-decisions

Therefore, the defendant is obligated to pay to the plaintiff 150,869,988 won [=(192,317,764 won + 1,782,220 won + 70% + 15,000,000 won] with compensation for damages arising from tort or employer's responsibility and damages for delay calculated at each rate of 12% per annum under the Civil Act from July 11, 2016, which is the date when the accident of this case occurred until October 22, 2020, which is the date when the decision of this case is rendered, to dispute about the existence of the defendant's performance obligation and the scope of the defendant's performance obligation.

4. Conclusion

The plaintiff's claim of this case is justified within the scope of the above recognition, and the remaining claim is dismissed as it is without merit. It is so decided as per Disposition.