[Plaintiff, Appellant]
[Defendant, Appellee] Korea Workers' Compensation and Welfare Service (근로복지공단)
[Lower Court Judgment] Busan High Court Judgment 2005Nu4076, decided January 27, 2006
[Order]
The lower court judgment is reversed, and the case is remanded to the Busan High Court.
[Reasoning]
We examine the grounds of appeal.
"Occupational accident" under Article 4, Item 1 of the former Industrial Accident Compensation Insurance Act (산업재해보상보험법, before its full amendment by Act No. 8373 on April 11, 2007; hereinafter the "Industrial Accident Compensation Insurance Act") means an accident that occurs due to the performance of work duties or ordinary activities incidental thereto, based on an employment contract between a worker and an employer, while under the employer's control and supervision. In general, even though a worker's commute to and from work is closely and inseparably related to the work of providing labor, insofar as the choice of the means and route of commuting is left to the worker, the mere fact that the means and route of commuting chosen by the worker were ordinary cannot make an accident occurring during the commute an occupational accident. However, conversely, where the process of commuting can be regarded as being under the employer's control and supervision, an accident occurring during the commute may also constitute an occupational accident (see Supreme Court en banc Decision 2005Du12572, decided September 28, 2007). This includes cases where a worker uses transportation provided by the employer, or where the employer has the worker use transportation equivalent thereto (see Supreme Court Decision 2004Du121, decided April 23, 2004), as well as cases where, although on its face the choice of the means and route of commuting appears to have been left to the worker, the worker actually performed work duties during the commute, or, due to urgent work-related matters before or after the ordinary commuting hours, or due to the nature of the work or the particularities of the workplace, there was in fact no room for choice regarding the means of commuting, such that it cannot be said that the choice was truly left to the worker, and it is determined that the commute is, in social norms, extremely closely and inseparably related to the work (see Supreme Court Decisions 2002Du10124, decided November 25, 2004; 2002Du12298, decided November 25, 2004; 2005Du4458, decided September 29, 2005; 2006Du2022, decided March 27, 2008; and 2006Du15660, decided April 24, 2008). In such cases, there exists a direct and close internal relationship between the accident occurring during the commute and the work, such that the accident may be regarded as having occurred due to work-related causes under the employer's control and supervision.
According to the reasoning of the lower court judgment, the lower court, comprehensively considering the evidence it adopted, found the following facts: the deceased, who had been an assistant manager in the general affairs department of the non-party company since joining on October 10, 2004, was in charge of various duties as stated in the judgment, including employee salaries and document dispatch, and had been commuting to work at around 08:00 and leaving work at around 21:00 to 23:00; on October 29 of that year (the lower court's reference to October 28 is clearly a clerical error), after finishing work at around 19:30, she participated in a dinner gathering with employees of the company's management office, returned to the company at around 22:00 the same day to handle remaining work, left work at around 23:30 the same day driving a passenger car registered in her mother's name, and at around 00:08 on October 30, the following day, caused a traffic accident by colliding with a utility pole on the sidewalk, dying at around 02:20 the same day. Based on these findings, the lower court determined that even though the deceased died in this traffic accident that occurred while she was driving home after working until 23:30 the night before the accident, and even though it was late at night when it would have been difficult to use other means of public transportation such as taxis, such circumstances alone were insufficient to find that the deceased's process of commuting home was under the control and supervision of the non-party company, the employer, or that the above passenger car was transportation equivalent to that provided by the employer; therefore, the deceased's death could not be regarded as an occupational accident. Furthermore, the lower court determined that even if the deceased suffered the traffic accident due to drowsy driving caused by overwork, this could not be considered to fall within the scope of risk ordinarily accompanying fatigue arising from the performance of her duties, and thus there was no proximate causal relationship between the deceased's work and her death resulting from the accident.
However, according to the evidence adopted by the lower court and the record, the following circumstances may be identified: since joining the company, the deceased had come to work almost every day, including holidays, and had continued to work extended hours into the night; this was due to the operational necessity of the non-party company, which was preparing for its opening ceremony, and the volume of work the deceased was handling at the time was objectively excessive for one person to manage alone; the dinner gathering the day before the accident was an official company gathering that had been planned in advance, following the company's opening ceremony held the previous day, which the deceased attended without consuming alcohol, and after the gathering ended, the deceased, along with a total of four employees, returned to the company under the guidance of the head of the general affairs department to handle remaining work, and at around 23:30, at the recommendation of the head of the general affairs department, left work, driving the above passenger car from the company located in Changwon City along the ordinary route toward her home located in Jinhae City. Examining the facts found by the lower court together with the above circumstances in light of the legal principles set forth above, there is substantial room to find that the deceased, a 26-year-old unmarried woman, had, at the time of the accident, continued working until late at night due to urgent business necessity of the company, and, since it was difficult to use public transportation such as taxis or buses, had no reasonable alternative but to commute home, located outside the city, using the above passenger car, which appears to have been prepared in anticipation of frequent night work. If that is the case, it cannot be said that the choice of the means and route of commuting at the time of this accident was in fact left to the deceased; rather, it should be regarded as having been under the objective control and supervision of the company, the employer, and therefore the deceased's death may be found to constitute an occupational accident under the Industrial Accident Compensation Insurance Act.
Furthermore, under such circumstances, it cannot be concluded that this traffic accident occurred solely due to the deceased's careless driving, unrelated to her work.
Nevertheless, the lower court, without fully examining whether the exceptional circumstances necessary for determining an accident occurring during a commute to be an occupational accident, as discussed above, existed, concluded, based solely on the circumstances stated in its judgment, that this accident was not an occupational accident or that there was no proximate causal relationship with the work. This constitutes an error of misunderstanding the legal principles concerning occupational accidents under the Industrial Accident Compensation Insurance Act and failing to conduct the necessary examination.
The argument in the grounds of appeal pointing this out is well-founded.
Therefore, the lower court judgment is reversed, and the case is remanded to the lower court for further examination and determination. This judgment is rendered by the unanimous opinion of the participating Justices as set forth in the Order.
Justice Cha Han-seong (Presiding Justice), Justice Ko Hyeon-cheol, Justice Kim Ji-hyeong (Justice in charge), Justice Jeon Su-an