[1] The scope of compensation for damage and the criteria for calculating the degree of contribution to the expansion of damage caused by the aggravation of the victim's king in competition with the traffic accident

[2] The case reversing the judgment of the court below which did not consider the calculation of lost income during the period of hospitalized treatment, although the king symptoms, etc. of the victim of the traffic accident contributed to the expansion of damage

[1] In a case where the king evidence of the victim of a traffic accident has contributed to the occurrence of a specific injury caused by the aggravation of the period of medical treatment or the expansion of the degree of harm after the completion of medical treatment, it is reasonable from the perspective of fair and equitable burden of damage to bear the amount of compensation corresponding to the victim's total damage according to the degree that the king contributed to the occurrence of the whole result of the injury including the specific injury. In determining the degree of contribution to the whole injury of the king evidence, it is not necessarily necessary for the court to accurately determine the degree of contribution to the whole injury in medical science, and it can be determined reasonably in light of all the circumstances, such as the cause and degree of the king evidence, the degree of injury, the degree and degree thereof, the correlation between the king evidence and the whole injury, the course of medical treatment, the age, occupation, health conditions, etc. of the victim.

[2] The case reversing the judgment of the court below which did not take this into account in calculating lost income during the period of hospitalization although the king, etc. of the victim of the traffic accident contributed to the expansion of damage

[1] Articles 393 and 763 of the Civil Act / [2] Articles 393 and 763 of the Civil Act

[1] Supreme Court Decision 94Da1517 delivered on November 25, 1994 (Gong1995Sang, 82), Supreme Court Decision 94Da59677 delivered on September 10, 1996 (Gong1996Ha, 2992), Supreme Court Decision 99Da7091 delivered on June 11, 199 (Gong199Ha, 138), Supreme Court Decision 2000Da16237 delivered on April 26, 2002 (Gong2002Da52138 delivered on November 26, 2002)

Plaintiff

Samsung Fire and Marine Insurance Co., Ltd. (Law Firm Shin, Attorneys Kim Chang-soo, Counsel for defendant-appellant)

Busan High Court Decision 2003Na15440 delivered on July 16, 2004

The part of the judgment of the court below against the defendant as to lost income damages shall be reversed, and that part of the case shall be remanded to Busan High Court.

1. According to the reasoning of the lower judgment, the lower court comprehensively assessed the adopted evidence, and assessed the loss rate of labor ability by 12% (24% x 0.5) by taking into account the following factors: (a) the Plaintiff suffered from injury to the diversified lefts and the 4-5-round emergency, and the degree of contribution to the Plaintiff’s injury to the Plaintiff; and (b) the rate of loss of labor ability until August 23, 2000, which is the date of discharge from the date of the instant accident, until December 31, 2018, the maximum working age of which is 50%; and (c) calculated the loss rate of labor ability by evaluating the loss rate of labor capacity as 12% (24% x 0.5).

2. However, we cannot agree with the above determination by the court below for the following reasons.

If the king evidence of the victim of a traffic accident has contributed to the occurrence of the victim's occurrence of a specific injury, the prolonged period of treatment, or the expansion of the degree of disability after the treatment is completed, it is reasonable from the perspective of fair and equitable burden of damages to have the victim bear the corresponding amount of compensation out of the total damages according to the degree recognized to have contributed to the occurrence of the whole result of the injury including the specific injury. In determining the degree of contribution to the whole injury of the king evidence, the court does not necessarily have to make an accurate judgment in medical science. In determining the degree of contribution to the whole injury, it is not necessarily necessary to determine the degree of contribution to the king evidence in medical science, and it can be reasonably determined by taking into account all the circumstances such as the cause and degree of the king evidence, the degree of injury, the correlation between the king evidence and the entire injury, the degree of relation between the king evidence and the whole injury, the age, occupation and health conditions of the victim, etc. (Supreme Court Decisions 94Da1517 Decided November 25, 1994).

According to the records, with respect to the plaintiff, a metal removal surgery was performed on January 18, 200, as a form of static surgery without any superior relationship with the above injury inflicted by the accident of this case, other than the neutic surgery and treatment for the above injury inflicted by the accident of this case. A metal removal surgery was conducted on July 7, 200 due to aggravation of its condition, and the period of hospitalization was longer extended, and the result of the first instance court's personal examination for the plaintiff, even if it is based on the result of the first instance court's personal examination for the plaintiff, the plaintiff was hospitalized twice during the period of hospitalization and hospitalized for six months as a result, and the plaintiff was hospitalized for more than six months without permission of the hospital during the period of hospitalization.

In addition, as duly admitted by the court below, the degree of contribution of the accident in this case to the escape certificate of a protruding signboard between the 4-5th century suffered by the plaintiff is 50% in consideration of the plaintiff's evidence. In light of the above legal principles, the court below should have calculated the lost income during the period of hospital treatment in consideration of the part and degree of injury caused by the accident in this case, the part of the harm caused by the aftermath, the part of the aftermath disability, and the part that contributed to the king during the period of hospital treatment.

Nevertheless, the court below did not take this into account when calculating the plaintiff's lost income, and calculated the lost income by considering the rate of loss of labor ability from the accident to the discharge date as 100%. Thus, the court below erred in the misapprehension of legal principles as to calculation of lost income. Thus, the ground of appeal pointing this out has merit.

3. Therefore, the part of the judgment of the court below against the defendant as to lost income damages of the plaintiff is reversed, and that part of the case is remanded to the court below for a new trial and determination. It is so decided as per Disposition by the assent of all participating Justices.

Justices Zwon-won (Presiding Justice)