[Plaintiff, Appellant]
[Defendant, Appellee] Korea Workers' Compensation & Welfare Service
[Judgment Below] Seoul High Court Decision 2005Nu29060 decided December 28, 2006
[Order]
The judgment below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning]
The grounds of appeal are examined.
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), "occupational accident" refers to an accident that arises from work performed in the course of carrying out the relevant work duties or activities ordinarily incidental thereto, under the employer's control and direction, based on the employment contract between the employee and the employer. Generally, even though an employee's commute to and from work is closely and inseparably related to the work of providing labor, insofar as the choice of commuting method and route is left to the employee, the mere fact that the employee's chosen method and route of commuting was the usual one does not make an accident occurring during the commute an occupational accident. However, where the employee's commuting process can be regarded as being under the employer's control and direction, 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 the employee uses transportation provided by the employer or transportation arranged by the employer to be used in lieu thereof (see Supreme Court Decision 2004Du121 decided April 23, 2004), as well as cases where, although on the surface the choice of commuting method and route appears to be left to the employee, the employee in fact performed work duties during the commute, or had to attend to urgent work-related matters before or after the ordinary commuting hours, or, due to the nature of the work or the particular characteristics of the workplace, had no real choice regarding the method of commuting, such that the choice cannot in fact be said to have been left to the employee, and the commute is deemed, in light of social norms, to be extremely closely and inseparably related to the work. In such cases, there exists a direct and close internal connection between the accident occurring during the commute and the work, and the accident may be regarded as having occurred due to work-related causes under the employer's control and direction (see Supreme Court Decisions 2002Du10124 decided November 25, 2004; 2002Du12298 decided November 25, 2004; 2005Du4458 decided September 29, 2005; 2006Du2022 decided March 27, 2008; 2006Du15660 decided April 24, 2008; 2006Du4127 decided September 25, 2008, etc.).
The court below determined that, with respect to this accident, in which the Plaintiff, an employee of the non-party company, was injured on November 18, 2003, at approximately 19:50, when he fell due to careless driving while riding his own motorcycle to commute to the non-party company for night-shift work, this accident occurred outside the workplace in a situation where the choice of commuting method and route was left to the Plaintiff, and therefore could not be said to have occurred under the employer's control and direction, and thus did not constitute an occupational accident.
However, according to the facts lawfully established by the court below and the record, the following circumstances are found: the non-party company, located in ○○-ri, Duseo-myeon, Ulju-gun, Ulsan, provides a commuter bus for employees residing in Busan, but this commuter bus does not pass near the Plaintiff's residence in △△-ri, Dudong-myeon, Ulju-gun, Ulsan; in order for the Plaintiff to commute to the non-party company without using a motorcycle, he would have to walk from his residence to the front of the Dudong-myeon Office, take city bus No. ○○ from there to □□ Triangle Intersection, and then take city bus No. △△ or the commuter bus, or walk, from there to the front of the non-party company; the distance from the Plaintiff's residence to the front of the Dudong-myeon Office appears to be a considerable distance of about 1-2 km, and city bus No. ○○ operates 8 times a day at 120-minute intervals, while city bus No. △△ operates 21 times a day at 56-minute intervals, and walking from □□ Triangle Intersection to the front of the non-party company takes about 25 minutes; and taking the commuter bus at □□ Triangle Intersection is possible only during weekday daytime shifts.
Taking these circumstances together, it is practically impossible, or would require the Plaintiff to bear significant physical hardship and burden on daily life, for the Plaintiff to use public transportation or the commuter bus to commute to and from work, such that it would be unreasonable, in light of social norms, to expect the Plaintiff to choose a commuting method other than his own personal transportation, such as a motorcycle or car. Accordingly, the Plaintiff had no real choice regarding the method of commuting, and it cannot be said that the choice was in fact left to the Plaintiff; rather, it must be judged that the commute was, in light of social norms, extremely closely and inseparably related to the work, such that there exists a direct and close internal connection between the accident occurring during such commute and the work, and the accident must be regarded as having occurred due to work-related causes under the employer's control and direction.
Nevertheless, the court below determined that this accident did not constitute an occupational accident, on grounds such as that it could not be said to have been entirely impossible for the Plaintiff to commute to and from the non-party company in accordance with the operating times of the city bus or commuter bus, or to walk part of the route. The judgment below is thus erroneous in that it misapprehended the legal principles concerning occupational accidents under the former Industrial Accident Compensation Insurance Act.
Therefore, without determining the remaining grounds of appeal concerning the infringement of the right to equality, the judgment below is reversed, and the case is remanded to the court below for further hearing and determination. This decision is rendered by the unanimous opinion of the participating Justices, as set forth in the Order.
Justice Ahn Dae-hee (Presiding Justice), Park Si-hwan (Justice in charge), Park Il-hwan, Shin Young-chul