[1] In calculating the amount of damages due to medical malpractice, whether the risk of physical disorder or disease that is unrelated to the victim's causes may be considered as grounds for reduction (affirmative), and whether the fact-finding and the determination of percentage of the causes for offsetting negligence are matters under the exclusive authority of the fact-finding court (affirmative)

[2] In case where the probative value and estimation of the result of the examination of life expectancy by the commission of physical examination are uncertain, the method of payment of damages, such as the daily income and future medical expenses, etc.

[3] Whether the victim of a personal accident needs nursing after completion of treatment, and the method of determining whether such care is needed

[1] Articles 396 and 763 of the Civil Act / [2] Article 202 of the Civil Procedure Act / [3] Article 202 of the Civil Procedure Act, Articles 393 and 763 of the Civil Act

[2] [3] Supreme Court Decision 2007Da85973 Decided February 29, 2008 / [1] Supreme Court Decision 98Da12270 Decided July 24, 1998 (Gong1998Ha, 2216), Supreme Court Decision 96Da11440 Decided September 4, 1998 (Gong1998Ha, 2380) / [2] Supreme Court Decision 92Da26673 Decided November 27, 1992 (Gong193Sang, 255) / [3] Supreme Court Decision 2001Da72678 Decided November 26, 2002 (Gong203Sang, 196) / [3] Supreme Court Decision 2004Da61775 Decided June 25, 2004

Plaintiff (Attorney Shin-ho et al., Counsel for plaintiff-appellant)

Defendant School Foundation (Law Firm Yang, Attorneys Kim Jong-young et al., Counsel for the defendant-appellant)

Daejeon High Court Decision 2008Na281 Decided August 28, 2009

The part of the lower judgment against the Defendant is reversed, and that part of the case is remanded to the Daejeon High Court.

The grounds of appeal are examined.

1. On the first and fifth grounds for appeal

After recognizing the facts based on the adopted evidence, the court below found that the nurse of the emergency room of the defendant hospital was negligent in confirming the symptoms of the plaintiff and taking appropriate measures as stated in its decision, and held that the defendant is liable for compensation for the damages suffered by the plaintiff as the employer of the medical team of the defendant hospital. In light of the relevant legal principles and records, the court below's fact-finding and decision are just and acceptable, and there is no error of law such as violation of the rules of evidence and misunderstanding of legal principles as to medical malpractice

2. On the second ground for appeal

Where damage occurs or has been expanded by competition between harmful acts and the victim's factors, even if the victim's factors are irrelevant to the victim's causes, such as the risk of physical talent or disease, in light of the type, degree, etc. of the disease, the court may apply the legal principle of offsetting negligence to determine the amount of compensation and take into account the victim's factors who contributed to the occurrence or expansion of the damage by analogy of the legal principle of offsetting negligence (see, e.g., Supreme Court Decision 98Da12270, Jul. 24, 1998). In a claim for compensation for damage caused by tort, finding fact-finding or determining the rate of offsetting negligence is a matter within the exclusive jurisdiction of the fact-finding court unless it is deemed remarkably unreasonable in light of the principle of equity (see, e.g., Supreme Court Decision 96Da11440, Sept. 4, 1998).

After recognizing the facts, the court below limited the defendant's liability to compensate for damages by taking into account the following circumstances: the plaintiff's age and state, the non-party's mother's loss of consciousness after the plaintiff's oral discussion, and there was no probability that the nurse would have taken different measures if he had known about the registered nurse in advance, and the type and degree of the defendant's negligence. In light of the above legal principles and the records, the court below's fact-finding and judgment are just and acceptable, and there were no errors in the misapprehension of the rules of evidence and the misunderstanding of the legal principles as to the limitation of liability ratio, as

3. On the third ground for appeal

The extent to which the post-treatment affects the life expectancy should be reduced shall be individually determined from the medical point of view according to the specific contents of the post-treatment. The result of the physical appraisal by commission is belonging to the medical judgment, and unless there are special circumstances, the appraiser's judgment as to it shall be respected (see, e.g., Supreme Court Decisions 92Da26673, Nov. 27, 1992; 2007Da85973, Feb. 29, 2008; 2007Da85973, Feb. 29, 208). Even according to the result of the expert appraiser's appraisal, where it is deemed uncertain that the life expectancy of the victim is uncertain even if it is determined as a result of the expert appraiser's appraisal, it shall be ordered to pay lump sum damages for a period for which it is deemed that the victim is alive and will continue (see, e.g., Supreme Court Decision 201Da72678, Nov. 26, 2002).

Examining the reasoning of the judgment below in light of the records, the court below determined that the Plaintiff’s life expectancy was 40.63 years (0.5 x 0.5 x 81.26 x 0.5) whose average remaining life expectancy was reduced to 50% of the average remaining life expectancy of the first instance court, and ordered the Plaintiff to pay a lump-sum payment as compensation for actual income, future treatment expenses, purchase expenses of assistive devices, and nursing expenses during that period. Meanwhile, according to the records of “medical judgment on compensation and compensation,” the physical appraisal physician in charge of the above physical appraisal determined that the Plaintiff’s life expectancy was 50% of average remaining life expectancy of the second instance court, and that the remaining life expectancy ratio of the severely disabled person was 20 through 50% of normal life, and that the above physical appraisal ratio was 50% of average remaining life expectancy or 40% of the above physical appraisal function of the severely disabled person as a whole, and the above physical appraisal ratio was 50% of average remaining life or 40% of the above physical appraisal function of the deceased person.

If there are circumstances, the result of the first instance court’s physical assessment is not based on the assessment of physical function according to the original purport of the literature, which is the basis for the determination, but rather on the basis of the subjective judgment of an appraiser, and there is no reasonable reason or explanation. Therefore, it is difficult to view the Plaintiff’s life expectancy as materials to be trusted to the extent that it can be specified.

Nevertheless, the court below adopted the physical appraisal result of the court of the first instance as it is and concluded that the Plaintiff’s life expectancy was 40.63 years. This constitutes an unlawful act that affected the conclusion of the judgment by failing to exhaust all necessary deliberations and by erroneously recognizing facts in violation of the rules of evidence. The ground of appeal pointing this out is with merit.

On the other hand, as long as the judgment of the court below is reversed for the above reasons, the consolation money portion related thereto cannot be maintained as it is because the court below can not be considered as the grounds for calculating the amount.

4. On the fourth ground for appeal

The necessity and reasonableness of nursing shall be determined by comprehensively taking into account the parts, degree, age, treatment period, etc. of the victim’s injury or disability. Whether the victim of a personal accident needs nursing even after the treatment is completed, and the degree thereof shall be determined based on the contents of the remaining disability revealed through expert’s appraisal, and in full view of all specific circumstances, such as the victim’s age, mental state, educational degree, social and economic conditions, etc., the normative evaluation shall be conducted in light of empirical and logical rules (see, e.g., Supreme Court Decisions 2004Da6917, Jun. 25, 2004; 2007Da85973, Feb. 29, 2008).

After finding the facts based on the adopted evidence, the court below found that the plaintiff's age had not yet been affected by the care of his parents. While the psychological part of the physical appraisal opinion mainly focuses on the present state, while the rehabilitation department seems to have judged in mind about the plaintiff's growth, rehabilitation treatment, adaptation to assistive devices and future conditions, and the plaintiff's protection and surveillance of the plaintiff alone is difficult, and it seems that it is difficult for the plaintiff to protect and monitor the plaintiff at all times due to mental disorder, and it is difficult for the present symptoms to clearly show the current symptoms in the future, the court below held that the 16 hours per day excluding the surface hours from January 15, 2007, the date of the physical appraisal of the plaintiff, from January 14, 2017, there is no need to open the 16 hours per day after the day after the date of the physical appraisal, and there is no need to do so by the adult 18 hours per day until the expiration of the life. In light of the above legal principles and records, the court below's judgment is justified.

5. On the sixth ground for appeal

The court below acknowledged that the judgment of the court of first instance partially reduced the amount of passive damages out of the amount of damages suffered by the plaintiff due to the accident of this case, but it accepted part of the plaintiff's appeal and accepted more damages and consolation money, but it did not pay 5% interest per annum under the Civil Act from April 18, 2006 to December 12, 2007, which is the date of the judgment of the court of first instance, until December 12, 2007, which is the date of the judgment of the court of first instance, and 20% interest per annum under the Act on Special Cases concerning the Promotion, etc. of Legal Proceedings (hereinafter "the Act on Special Cases concerning the Promotion of Legal Proceedings"), as to the remaining property damages and consolation money, from April 18, 2006 to August 28, 2009, which is the date of the judgment of the court of first instance, to the date of full payment.

However, since active damages and passive damages and mental damages suffered by a tort against life or body differ in the subject matter of a lawsuit, whether it is reasonable to dispute about the existence or scope of the obligation to compensate for damages should be separately determined for each damages (see, e.g., Supreme Court Decisions 2000Da63752, Feb. 23, 2001; 2002Da34581, Sept. 10, 2002). In this case, as active damages and consolation money cited by the first instance judgment, the amount maintained in the original judgment (per 459,980,016 = 556,225,020 + 0.8.15,000 + 15,000,000 won x 456,000 won x 15,000 won, barring any special circumstance, the following day of the first instance judgment cannot be seen as having been accepted by the Defendant as to this part of the judgment of the first instance by 30150,200 won and 4515.

Nevertheless, the court below erred by misapprehending the legal principles under Article 3 (1) of the Act on Special Cases Concerning the Promotion of Legal Proceedings and thereby affecting the conclusion of the judgment, on the part of passive damages, which are reduced compared to the judgment of the court of first instance, by the day following the date of the judgment of the court of first instance, and by the day after the judgment of the court of first instance, it is unreasonable for the defendant to resist the existence or scope of the obligation. The ground of appeal assigning

6. Therefore, the part of the lower judgment against the Defendant is reversed, and that part of 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 Cha Han-sung (Presiding Justice)