CONTENTS
- 1. Damages Litigation, What Were the Detailed Circumstances?
- - Damages Litigation, What Were the Arguments of the Plaintiff and the Defendant?
- 2. Damages Litigation, What Was the Court's Determination?
- 3. Damages Litigation, What Was Daeryun's Strategy?
1. Damages Litigation, What Were the Detailed Circumstances?
The plaintiff in this damages litigation was A, who had operated a fish farm, and the defendant was B, a company that carried out the new construction of the OO Art Museum near the fish farm.
While the construction was underway, numerous fish at the farm died, including 100,000 sweetfish and 2.1 million spotted sea bass.
A therefore claimed that the noise and vibration generated during B's construction had caused this damage, and A filed a claim for damages against B.
Damages Litigation, What Were the Arguments of the Plaintiff and the Defendant?
A obtained an appraisal in order to prove the damage, and A argued that, according to the appraisal results, the noise and vibration generated at the construction site exceeded the tolerable limit and had caused harm to the fish farm.
However, B countered that A's appraisal results could not be trusted.
First, B pointed out that no underwater noise measurement had been conducted during the appraisal A carried out, and that the noise had been measured arbitrarily on top of styrofoam.
B further argued that the appraiser had arbitrarily lowered the threshold for recognizing damage to farmed fish and had applied an arbitrary conversion formula, so that errors arose in the process of calculating the underwater noise. B argued that, according to additional measurements it had commissioned from a technology research institute, the noise and vibration from the construction did not exceed the tolerable limit, contrary to A's appraisal results.
B also argued that, because its construction was carried out under the National Land Planning and Utilization Act, the Act on Acquisition of and Compensation for Land, etc. for Public Works Projects (hereinafter the Land Compensation Act) should apply in this case, and that A therefore could not claim damages against B.
2. Damages Litigation, What Was the Court's Determination?
The High Court that heard this damages litigation recognized that B's liability for damages was established, but recognized only part of the scope of that liability.
Regarding the Establishment of Liability for Damages
The court held that the fact that noise and vibration had been generated at B's construction site could not be denied, and, based on the appraiser's appraisal results, recognized that the noise and vibration generated by the construction had exceeded the tolerable limit and affected the fish farm.
The court found that A's appraisal method was appropriate for measuring noise and vibration and for determining whether the tolerable limit had been exceeded, and determined that the private appraisal submitted by B had been conducted without going through the court and therefore lacked fairness and objectivity.
In addition, because this lawsuit sought compensation for the damage suffered as a result of the noise and vibration generated by B, the court determined that the Land Compensation Act could not be applied*.
*A case seeking compensation for damage caused by a public works project under the Land Compensation Act corresponds to a situation in which a special sacrifice of property has occurred through a lawful exercise of public authority, yet no compensation for that loss has been made.
Regarding the Scope of Liability for Damages
The court recognized that the death of fish and the delayed growth at the farm during the construction period had a causal relationship with the noise and vibration at the construction site, and held that, in calculating A's amount of loss, the loss of profits resulting from the loss of business should be taken into account.
However, considering that the number of fingerlings whose growth had been delayed was difficult to determine clearly, and that it was difficult to calculate precisely the effect that the noise and vibration had on the deaths and the delayed growth, the court recognized the specific amount of loss as 30% of the amount calculated by the appraiser, pursuant to Article 202-2 of the Civil Procedure Act*.
In addition, finding that A's lack of experience, such as failing to adjust the farming environment during the construction and restocking* fish when they died, had affected the deaths, the court limited the defendant's liability for damages to 40% of the total amount of loss.
*Article 202-2 of the Civil Procedure Act: Where the fact that loss has occurred is recognized but it is difficult to prove the specific amount, the court may determine the amount of damages.
*Restocking: bringing fingerlings (young fish) or young shellfish into a farm and beginning to raise them.
3. Damages Litigation, What Was Daeryun's Strategy?
In connection with this damages litigation, we have analyzed a High Court judgment holding that, where fish at a nearby aquaculture farm died as a result of noise and vibration generated during construction, the contractor is liable to compensate that loss.
As this case shows, to bring a 🔗damages lawsuit, not only must there be an unlawful act, but the fact that loss has occurred must also be recognized, and that loss must fall within the scope of damages recognized by law.
When calculating the amount of damages, it is important to accurately assess the extent of the harm and to claim a reasonable amount, and in this process you may wish to seek the assistance of an attorney experienced in such matters.
The 🔗Civil and Damages Group of Daeryun Law Firm LLP provides active assistance to protect clients' rights and interests based on data accumulated through a range of related consultations and case engagements, so if you need help, you are welcome to request a 🔗legal consultation at any time.
