[Plaintiffs, Appellees] Plaintiff 1 and 4 others, Plaintiffs' Attorney Kim Seon-myeong
[Defendant, Appellant] Defendant, Defendant's Attorneys Kim Hyeong-su and 1 other
[Judgment Below] Daegu High Court Decision 93Na1344 rendered on November 12, 1993
[Order]
The appeal is dismissed.
The costs of the appeal are borne by the Defendant.
[Reasoning]
The grounds of appeal are examined.
1. As to Ground of Appeal No. 1
According to the reasoning of the judgment below, the court below found the following facts: Plaintiff 1 joined "Sangsin Textile," a tent-manufacturing company operated by the Defendant, on December 12, 1989, and worked in the winder department, then voluntarily resigned on June 24, 1991; he rejoined the company on September 2 of the same year and, together with a non-party, formed a team in the drawing department, being in charge of feeding raw material into the drawing machine that extrudes yarn for tent manufacturing; on October 6 of the same year, although the said non-party was absent from work, the Defendant failed to supplement the workforce, causing the Plaintiff to perform the raw material feeding work alone; because the raw material mixing work had to proceed without disruption in order not to hinder a series of other operations, the Plaintiff, feeling psychological pressure, hurriedly performed the raw material mixing work alone, and at around 08:15 sustained excessive impact to his lower back due to the excessive workload and improper working posture, resulting in a herniated intervertebral disc between the 4th and 5th lumbar vertebrae and between the 5th lumbar vertebra and the 1st sacral vertebra. The court below then determined that this accident occurred due to the Defendant's negligence in supervising the work, that the said Plaintiff's own negligence was also a cause of the occurrence of this accident, and that it was reasonable to set the comparative negligence ratio at 50%.
Upon comparing and examining the evidentiary relationships set forth in the judgment below against the record, the fact-finding and determination of the court below are found to be justified and acceptable, and there is no illegality of misapprehending the facts in violation of the rules of evidence; nor can it be said that the comparative negligence ratio recognized by the court below is so remarkably unjust as to be contrary to justice and equity. This ground of appeal is without merit in its entirety.
2. As to Ground of Appeal No. 2
According to the reasoning of the judgment below, the court below found the following facts: Plaintiff 1 rejoined Sangsin Textile, operated by the Defendant, on September 2, 1991, entering into an employment contract with a term running until October 2, 1992, and retired on June 12, 1992 due to this accident; at the time of this accident, the said Plaintiff was receiving a monthly salary of 630,000 won, and had entered into an employment contract under which he was to be paid a bonus equivalent to 60% of the total salary received if his period of service was 6 months or longer, 100% if 12 months or longer, and 200% if 24 months or longer. The court below then determined that even after the expiration of the said employment contract term on October 2, 1992, until July 11, 2021, the date on which the said Plaintiff would reach the mandatory retirement age of 55 as prescribed by the work rules of Sangsin Textile, he lost income corresponding to his degree of loss of labor capacity, including the said bonus and salary, as well as retirement pay equivalent to the average wage for 30 days per year of continuous service up until the said retirement age.
The lost income of a victim due to a tortious act must be calculated on a standard that properly reflects the property value inherent in the victim's labor capacity, and for a person who was engaged in a certain occupation and earning income at the time of the accident, that income shall, absent special circumstances, serve as the basis for calculation.
Moreover, the reason that the income at the time of the accident is used as the basis for calculating lost income is that such income can serve as the most objective material for evaluating the victim's labor capacity, and it is not based on the premise that the victim would specifically continue to earn the same amount of income in the future. Therefore, even if the workplace at which the victim was working at the time of the accident was based on a fixed-term contract with another party such that the victim could not continue working at that workplace after the expiration of the contract term, it cannot be concluded that the victim could earn only the income obtainable from engaging in day labor thereafter; rather, absent special circumstances, it is reasonable to view that the victim could continue to engage, until the retirement age, in a similar occupation earning an income of the same level as at the former workplace (see Supreme Court Decision 87Daka2169 rendered on December 22, 1987).
In light of the record, the fact-finding and determination of the court below are found to be justified and acceptable, and there is no illegality of misapprehending the legal principles concerning the calculation of lost income as argued in the ground of appeal. This ground of appeal is without merit.
3. As to Ground of Appeal No. 3
Since damages are intended to compensate for losses, where the victim has already received temporary disability benefits or disability benefits under the Labor Standards Act (근로기준법) or the Industrial Accident Compensation Insurance Act (산업재해보상보험법), the deduction of the amount of such benefits from the amount of damages for lost income can only be made between items of the same nature that are in a mutually complementary relationship. Accordingly, even if the temporary disability benefits or disability benefits received by the victim exceed the amount of passive damages recognized by the court, the excess portion is not to be deducted in calculating the amount of damages for losses of a different nature; and by the same reasoning, since temporary disability benefits correspond to lost income during the period of temporary disability, the temporary disability benefits should be deducted only from the amount of damages equivalent to the lost income during the period of temporary disability for which they were paid (see Supreme Court Decision 90Da11776 rendered on July 23, 1991).
In the same vein, the determination of the court below, holding that the Defendant's argument for deduction of the temporary disability benefits of 3,765,670 won was justified only within the scope of 608,528 won, the amount of damages equivalent to lost income during the period of temporary disability from October 7, 1991 to June 12, 1992, is found to be justified and acceptable, and there is no illegality of misapprehending the legal principles concerning set-off of profit and loss. This ground of appeal is without merit.
4. As to Ground of Appeal No. 4
Upon examination of the record, the amount of consolation money calculated by the court below is also deemed appropriate, and thus the argument that the court below made a fact-finding in violation of the rules of experience or misapprehended the legal principles in calculating consolation money cannot be accepted.
5. The Defendant appealed against the entire portion of the judgment below that was decided against him, but has not raised any grounds of appeal with respect to the portions concerning future medical expenses, expenses for purchasing assistive devices, and future nursing care expenses, and thus the appeal as to these portions is without merit.
6. Therefore, the appeal is dismissed, and the costs of the appeal are to be borne by the losing party. This Judgment is rendered as stated in the Order by the unanimous opinion of the participating Justices.
Justice Lee Im-su (Presiding Justice), Kim Seok-su, Jeong Gwi-ho (Justice in charge), Lee Don-hee