[Plaintiffs, Appellants and Appellees] Plaintiff 1 and 4 others (Attorney Maeng Ju-seok, Counsel for the plaintiffs)
[Defendant, Appellee] Daehan Fire & Marine Insurance Co., Ltd. (Attorney An Yeong-do, Counsel for the defendant)
[Defendant, Appellee and Appellant] Samsung Fire & Marine Insurance Co., Ltd. (Bae, Kim & Lee LLC (Hwawoo), Attorney Baek Hyeon-gi and 3 others, Counsel for the defendant)
[Lower Court Judgment] Seoul High Court Decision 2002Na27424, decided December 26, 2002
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
The grounds for appeal are examined.
1. Judgment on the plaintiffs' grounds of appeal
A. As to Ground of Appeal No. 1
(1) The court below, based on the evidence it adopted, found the following facts: At around 02:30 on January 30, 2000, upon hearing news that a preceding traffic accident had occurred near the Wolam Interchange on the "Uiwang-Gwacheon Toll Road" (the court below described it as the "Gwacheon-Bongdam Expressway") located in Wolam-dong, Uiwang-si, Nonparty 1 drove a tow truck (Vehicle No. 1 omitted), which was covered by a comprehensive automobile insurance policy with Defendant Daehan Fire & Marine Insurance Co., Ltd., from the direction of Gwacheon toward Suwon and arrived at the accident site; however, since the preceding accident had already been handled by another tow truck that had arrived earlier and the accident vehicles had been moved to the shoulder, Nonparty 1 stopped his tow truck about 20 meters behind the accident vehicles, with the warning lights and hazard lights turned on, in a position straddling roughly half of the second lane of the road and half of the shoulder. At the same time, Plaintiff 1 was driving a passenger car at a speed of about 30 to 40 km/h along the first lane of the road in the same direction, and upon reaching the accident site, discovered the tow truck stopped on the shoulder while straddling the second lane, with its warning lights and hazard lights on, and came to a stop; however, since it was snowing at the time, and moreover the snow that had fallen during the day had melted and then frozen on the road, the vehicle skidded on the icy road and the front of the Plaintiff's Tiburon passenger car's left side struck the rear of the tow truck (hereinafter referred to as the "first accident"). At the same time, Nonparty 2, driving a Leganza passenger car (Vehicle No. 2 omitted) covered by a comprehensive automobile insurance policy with Defendant Samsung Fire & Marine Insurance Co., Ltd., was proceeding along the second lane of the road in the same direction at a speed of about 30 km/h, and upon reaching the accident site, discovered ahead of him the tow truck and the Tiburon passenger car that had stopped as a result of the first accident, and came to a stop; however, the Leganza skidded on the icy road, and the rear of the Leganza struck the right side of the Tiburon passenger car (hereinafter referred to as the "second accident"; the first and second accidents are collectively referred to as "the instant accident"). Plaintiff 1 sustained injuries to his head, among other areas, as a result of the first accident, and with the assistance of Nonparty 1, unfastened his seatbelt and attempted to get out of the Tiburon passenger car; however, before he could even move from his seat, the second accident occurred, and as a result of the impacts from both accidents, he sustained injuries including multiple fractures of the skull and facial bones. Having found these facts, the court below determined that, even though Nonparty 1 was at fault in stopping the tow truck while straddling the second lane of the road to a certain degree, such fault could not be deemed to have a proximate causal relationship with the occurrence of the first accident, inasmuch as the stopped tow truck did not obstruct in any way the path of the Tiburon passenger car, which was traveling in the first lane of the road; rather, the court below found that the first accident occurred because Plaintiff 1, who was driving along the first lane of the road, which was frozen due to melted snow that had fallen earlier that day while it continued to snow, failed to keep a proper lookout ahead, and upon discovering the tow truck stopped on the shoulder while straddling the second lane with its warning lights and hazard lights on, applied sudden braking but skidded on the icy road, and that this was attributable solely and entirely to Plaintiff 1's negligence; on this basis, the court below accepted Defendant Daehan Fire & Marine Insurance Co., Ltd.'s defense of exemption from liability.
(2) The above determination by the court below cannot be upheld as it stands.
Considering Articles 56(1) and 59 of the Road Traffic Act (도로교통법) together, a motor vehicle must not, absent special circumstances, travel on the shoulder (referred to as "roadside strip" under Article 2 of the Rules on Standards for Road Structure and Facilities (도로의구조·시설기준에관한규칙)) of an expressway or motor-vehicle-only road, and parking or stopping on the shoulder is permitted only where there has been a breakdown or other unavoidable cause; it is reasonable to interpret the phrase "other unavoidable cause" under Article 59, Item 2 as referring to an urgent circumstance comparable in degree to a breakdown, such that parking or stopping on the shoulder becomes unavoidable. Meanwhile, under Article 61 of the Road Traffic Act and Article 23 of the Enforcement Rules of the Road Traffic Act (도로교통법시행규칙), where a driver becomes unable to operate the vehicle on an expressway or motor-vehicle-only road due to a breakdown or other cause, the driver must place the "sign for breakdown, etc." prescribed by the Enforcement Rules of the Road Traffic Act on the road at least 100 meters behind the vehicle, and, particularly at night, must additionally install, together with the above sign, a red flashing signal, electric lantern, or flare signal visible from a distance of 500 meters in all directions, on the road at least 200 meters behind the vehicle.
According to the facts found by the court below, by the time Nonparty 1 arrived at the accident site, the preceding traffic accident had already been handled by another tow truck and the accident vehicles had been moved to the shoulder; therefore, this cannot be deemed a case involving an unavoidable cause requiring the tow truck to be stopped at the accident site. Moreover, the location where the tow truck was stopped occupied roughly half of the shoulder and half of the second lane, thereby obstructing the passage of other vehicles, and Nonparty 1 merely turned on the warning lights and hazard lights while failing to install the "sign for breakdown, etc." prescribed under Article 61 of the Road Traffic Act and Article 23 of the Enforcement Rules of the Road Traffic Act. Accordingly, Nonparty 1's manner of stopping on the shoulder constitutes an illegal stop. Under the facts found by the court below, Nonparty 1 could sufficiently have anticipated that vehicles traveling on the motor-vehicle-only road might urgently swerve onto the shoulder to avoid an emergency situation or due to an unexpected occurrence such as skidding on ice, and that in such a case, a collision with the tow truck stopped on the shoulder could occur. Accordingly, there is a proximate causal relationship between Nonparty 1's illegal stop and the instant accident.
Nevertheless, the court below erred in the legal principles concerning proximate causation by determining that there was no proximate causal relationship between Nonparty 1's illegal stop and the first accident, and that the occurrence of the first accident was attributable solely and entirely to Plaintiff 1's negligence. Therefore, the ground of appeal pointing this out has merit.
B. As to Ground of Appeal No. 2
(1) As a general rule, the lost earnings of a salaried employee who has lost working capacity due to a tort should be calculated based on the wage income at the time the working capacity was lost; however, where there are objective materials that allow for a reasonably certain prediction that the wage income will increase in the future, such future increase in wage income must also be taken into account in calculating lost earnings. Damages corresponding to lost earnings calculated on the basis of such future increase in wage income are to be regarded as ordinary damages that are recognized, in light of common social understanding, as ordinarily arising from the tort in question, and therefore must naturally be included within the scope of compensation; the scope of compensation does not vary depending on whether the tortfeasor knew or could have known of the circumstance that the victim's wage income would increase in the future (see Supreme Court en banc Decision 88Da6761, decided December 26, 1989).
(2) According to the record in this case, it can be recognized that Hyundai Motor Company, where Plaintiff 1 was employed at the time of the instant accident, conducted wage negotiations with its labor union every year and applied the results of such negotiations retroactively to April 1 of the relevant year. However, in determining the base salary for calculating Plaintiff 1's lost income, the court below applied the increased base salary but omitted the portion to be applied retroactively as described above. The ground of appeal pointing this out has merit.
(3) Meanwhile, the court below rejected the plaintiffs' argument that, since Plaintiff 1 had received, from Hyundai Motor Company, from April 2001 onward (after the date of the instant accident), KRW 10,000 per month under the name of "integration allowance" and KRW 3,750 per month under the name of "adjustment allowance," these amounts should be included in the calculation of lost income, on the ground that these allowances were newly established after the date of the instant accident and constitute damages arising from special circumstances, and that there is no evidence that Defendant Samsung Fire & Marine Insurance Co., Ltd. knew or could have known of such circumstances at the time of the instant accident. Given that there is no objective material in the record of this case allowing for a reasonably certain prediction of the nature of these allowances and of whether they would continue to be paid in the future, the determination of the court below, although its reasoning is somewhat insufficient, is ultimately acceptable as correct, and it cannot be said that there was an error, as alleged in the grounds of appeal, in misapprehending facts in violation of the rules of evidence. The argument in this ground of appeal cannot be accepted.
C. As to Ground of Appeal No. 3
Where lost profits are calculated by applying a rate of loss of working capacity, that rate must not be a mere medical rate of physical dysfunction, but must be a rate of loss of earning capacity determined in accordance with empirical rules, taking into full account the victim's age, level of education, nature and career of the previous occupation, degree of skill and proficiency, degree of physical dysfunction, the possibility and probability of transferring to a similar or different occupation, and other social and economic conditions, such that it is reasonable and objective. The results of an expert's appraisal regarding the medical rate of physical dysfunction, which is one of the ancillary materials used in determining the rate of loss of working capacity, are merely a means by which the judge makes use of specialized knowledge and experience in a matter of fact-finding that requires such specialized knowledge and experience, and the rate of loss of working capacity must ultimately be determined normatively in light of all the aforementioned conditions of the victim and empirical rules (see Supreme Court Decision 91Da39320, decided May 22, 1992; Supreme Court Decision 2001Da80778, decided September 4, 2002, etc.).
The court below, with respect to Plaintiff 1's disfigurement, did not adopt the result of the physical examination commissioned to the director of Yeouido St. Mary's Hospital, which applied Grade 9 (significant disfigurement of appearance) under the disfigurement evaluation table of the Korean Society of Plastic and Reconstructive Surgeons and assessed the rate of loss of working capacity at 30%, and instead recognized the rate of loss of working capacity as 15% by applying "a person left with disfigurement of appearance" under Item 13 of Grade 12 of the [Attached Table] to the Enforcement Decree of the State Compensation Act (국가배상법시행령). Considering the evidence adopted by the court below in its entirety, the rate of loss of working capacity as recognized above, which was determined by using the above physical examination commission result as one item of ancillary material while taking into account the aforementioned social and economic conditions, does not appear to be contrary to empirical rules or logical rules; therefore, the above determination of the court below is acceptable, and it cannot be said that there was an error, as alleged in the grounds of appeal, of insufficient deliberation or violation of the rules of evidence. The argument in this ground of appeal cannot be accepted.
2. Judgment on Defendant Samsung Fire & Marine Insurance Co., Ltd.'s grounds of appeal
A. As to Ground of Appeal No. 1
The court below determined that the second accident occurred due to Nonparty 2's negligence in failing to keep a proper lookout ahead and in failing to secure a safe distance in advance, and on this basis rejected Defendant Samsung Fire & Marine Insurance Co., Ltd.'s defense of exemption from liability. The above determination by the court below is correct, and it cannot be said that there was an error as alleged in the grounds of appeal. The argument in this ground of appeal cannot be accepted.
B. As to Ground of Appeal No. 2
Where the victim is also at fault with respect to the occurrence or aggravation of damage caused by a tort, such circumstance must naturally be taken into account in determining the scope of the tortfeasor's liability for damages; in weighing the respective degrees of fault of the two parties, all circumstances relating to the occurrence of the accident must be fully considered in light of the purpose of the system of equitable apportionment of damages, and although fact-finding concerning grounds for comparative negligence and the determination of the ratio thereof fall within the exclusive authority of the court below as a fact-finding court, such determination must not be manifestly unreasonable in light of the principle of equity (see Supreme Court Decision 96Da54560, decided February 28, 1997; Supreme Court Decision 99Da21264, decided August 24, 1999, etc.).
The court below determined that Plaintiff 1, while driving on the icy road as described above, also failed to keep a proper lookout and caused the first accident by skidding while applying sudden braking, thereby obstructing the second lane of the road and thus contributing to the cause of the second accident; accordingly, the court below decided to take this into account in calculating the amount of damages to be paid by Defendant Samsung Fire & Marine Insurance Co., Ltd., and determined that, in light of the above facts, it was reasonable to set the ratio at approximately 10%.
However, even according to the facts found by the court below, Plaintiff 1, at the time of the instant accident, while the road surface was frozen and snow continued to fall, not only failed to keep a proper lookout ahead but also failed to reduce speed sufficiently, resulting in his belated discovery of the tow truck and his sudden braking, which caused the Tiburon passenger car to skid and triggered the first accident, thereby causing the vehicle to come to a stop on the second lane of the road and obstruct the path of the Leganza passenger car driven by Nonparty 2, ultimately leading to the second accident; whereas Nonparty 2, who was traveling in the second lane ahead of the accident site at a speed no faster than that of Plaintiff 1, belatedly discovered the black Tiburon passenger car blocking the second lane without any safety warning sign, applied sudden braking, but skidded on the icy road and caused the second accident. Under these circumstances, Plaintiff 1's negligence cannot be said to be any less than that of Nonparty 2.
Nevertheless, the court below's determination of Plaintiff 1's comparative negligence ratio with respect to the second accident as 10%, and its application of comparative negligence on that basis, must be said to be manifestly unreasonable. Therefore, the ground of appeal pointing this out has merit.
C. As to Ground of Appeal No. 3
As noted above, the first accident and the second accident, caused respectively by Nonparty 1 and Nonparty 2, are objectively found to bear a related commonality in their conduct; accordingly, in relation to the plaintiffs, Nonparty 1 and Nonparty 2 are joint tortfeasors who bear joint and several liability for the entirety of the damages liability in this case arising from the first and second accidents. In such a case, there is no need to separately determine the degree to which the second accident contributed to Plaintiff 1's injuries. Therefore, the argument in this ground of appeal has no merit.
3. Accordingly, since Grounds of Appeal Nos. 1 and 2 of the plaintiffs against the defendants, and Ground of Appeal No. 2 of Defendant Samsung Fire & Marine Insurance Co., Ltd., are meritorious, the judgment below is reversed, and the case is remanded to the court below for further hearing and determination. This judgment is rendered in accordance with the unanimous opinion of the Justices participating in the decision, as set forth in the Order.
Justice Kim Yong-dam (Presiding Justice), Yoo Ji-dam, Bae Ki-won (Justice in charge), Lee Kang-guk