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2015 (A) 741

2017.06.12
2015 (A) 741
Keishu Vol. 71, No. 5
Decision on a case where, in respect of a railway accident in which a train was derailed and overturned due to an overspeed at a curve, resulting in the death and injury of many passengers, former presidents of the railway company were not found guilty of professional negligence resulting in death
Case under public prosecution for professional negligence resulting in death
Judgment of the Second Petty Bench, dismissed
Osaka High Court, Judgment of March 27, 2015
In respect of a railway accident in which a rapid-service train was derailed and overturned resulting in the death and injury of many passengers due to the train driver’s significantly exceeding the speed limit and driving the train into a curve (the Curve) at a speed in excess even of the critical overturning speed, former presidents of the railway company cannot be considered to have been under a professional duty of care to give instructions to install an automatic train stop (ATS) device at the Curve to the Senior General Manager of the Railway Operations Headquarters, who managed the department responsible for the installation of ATS devices, under the factual circumstances of this case (see the judgment text), such as that prior to the accident, it was not required by law to install ATS devices at curves and most railway operators had not installed ATS devices at curves, and that the former presidents of the railway company which operated the rapid-service train could not have been able to specifically find the Curve to be at a high risk of derailment and overturning, out of more than two thousand similar curves located in the jurisdiction of the company.

(There is a concurring opinion.)
Article 211, paragraph (1), the first sentence of the Penal Code (before amended by Act No. 36 of 2006)



Penal Code (before amended by Act No. 36 of 2006)

Article 211 (1) A person who fails to exercise due care required in the pursuit of social activities and thereby causes the death or injury of another shall be punished by imprisonment with or without work for not more than 5 years or a fine of not more than 500,000 yen. The same shall apply to a person who through gross negligence, causes the death or injury of another.
The final appeals are dismissed.
Of the statement of reasons for final appeal submitted by the designated attorneys, KAWASE Shin, OKUMI Hajime and SASAKI Shin, who perform the duties of public prosecutors, the argument on the alleged contraventions of judicial precedents refers to precedents that are not appropriate for this case as their factual background was different from that of this case. The rest of their arguments were mere assertions of violations of law or factual errors and do not constitute any of the grounds for final appeal listed in Article 405 of the Code of Criminal Procedure.

Based on the appellants’ arguments, the Court makes a decision ex officio.

1. Outline of charged facts of this case

(1) During the period from June 1992 to March 1997, from April 1997 to April 2003, and from April 2003 to February 2006, respectively, Defendants A, B and C serially served as the President and Representative Director of West Japan Railway Company (JR-West), in which capacity each Defendant managed the execution of operations of the company and gave necessary instructions for the prevention of driving accidents through management meetings, etc. At the same time, each of the Defendants was, as chairman of the General Safety Committee established in the company, engaged in supervisory duties to establish a safety system for the operation of railways by taking the lead in deliberations about basic policies on countermeasures against driving accidents and, in particular, about countermeasures against serious accidents, and to take countermeasures to prevent serious accidents.

(2) For such purposes as facilitating the connection of the Fukuchiyama Line to the Tozai Line to prepare for the commencement of operation of the Tozai Line, JR-West changed the arrangement of railway tracks at Amagasaki Station, such as by constructing a grade separation of the Fukuchiyama Line and the Tokaido Line and, incidentally to this, executed a track alteration work to change the radius of the right-hand curve of the inbound track of the Fukuchiyama Line (hereinafter, the “Curve”) from 600 meters (m) to 304 m, resulting in a change of the speed limit for the Curve from 95 kilometers per hour (km/h) to 70 km/h (hereinafter, the “Work,” which was completed in December 1996 and was put into operation in March 1997). The Work resulted in a reduction of the critical overturning speed at the Curve for rapid-service trains during commuting hours, to around between 105 km/h and 110 km/h, which fell below the speed limit for the straight section in front of the Curve, i.e., 120 km/h. In addition, a revision of the timetable made in association with the aforementioned commencement of operation significantly increased the number of rapid-service trains per day, making it more likely that train drivers would drive the train at or near the speed limit of 120 km/h up to the front of the Curve in order to stay on schedule. For these reasons, there was imminent danger of derailment and overturning if a driver drives the train into the Curve at such a speed without appropriately using the brakes for any cause.

(3) In addition to the circumstances described above, the Defendants knew, or could have easily known, that JR-West installed ATS devices at curves whose radius was less than 450 meters, that the radius of the Curve fell significantly below this standard value as a result of the Work, and that several derailments and overturns had occurred in the past at curves of other companies due to excessive speed. Therefore, the Defendants were able to foresee the risk of a train being derailed and overturned at the Curve if driven by the driver into the Curve without the appropriate use of the brakes.

(4) Accordingly, Defendants A, B and C were, at the following respective times, under a professional duty of care to give instructions to install an ATS device at the Curve (or, in the case of Defendant C, to install an ATS device at the Curve on a preferential basis) to the Senior General Manager of the Railway Operations Headquarters, who managed the department responsible for the installation of ATS devices at JR-West: Defendant A—at the time of execution of the Work and at the time of the aforementioned revision of the timetable; Defendant B—promptly after taking the office of President in April 1997; and Defendant C—at the management meeting held on September 29, 2003 at which Defendant C decided on the construction project to install ATS devices along the Fukuchiyama Line or, at latest, at the time of revision of the timetable made in or after December 2003. However, all of the Defendants failed to fulfill such duty and allowed trains to be operated over the Curve without installing an ATS device at it.

(5) Consequently, around 9:18 a.m. on April 25, 2005, when the driver who was driving the rapid-service train of the Fukuchiyama Line drove the train into the Curve at a speed of approximately 115 km/h, which was in excess of the critical overturning speed, without appropriately using the brakes, the driver could not automatically slow down the train in advance through the use of an ATS device, causing the train to be derailed and overturned, killing 106 passengers and injuring 493 others of the train (hereinafter this accident is referred to as the “Accident”).

2. Factual background

According to the judgment of prior instance as well as the findings and records of the judgment of the first instance which were accepted by the judgment of prior instance, the factual background of this case is as follows.

(1) The direct cause of the Accident was the driver’s driving the train into the Curve at a speed of approximately 115 km/h, which was significantly in excess of the speed limit of 70 km/h at the Curve and in excess even of the critical overturning speed.

(2) An ATS device is a security system which exchanges such information as the signal indication ahead and spots with speed limits between a track antenna beacon installed on the track and a pickup coil installed on a train, and draws the driver’s attention by making alarm bells ring in the driver’s cabin and automatically applies the brakes. In 1962, a major fatal and injury accident occurred due to the train’s failure to observe a stop signal. With this as a turning point, ATS devices were installed nationwide in order to prevent such running against signals. Subsequently, an improved model of ATS device was developed, which was equipped among others with speed check function, by which the device checks the train speed and automatically controls the train operation by applying the brakes if a certain speed is exceeded. Since 1987, ATS devices of this model have been installed gradually.

ATS devices with speed check function can be used to prevent not only running against signals but also exceeding speed limits at curves and other spots. The relevant order of the Ministry of Land, Infrastructure, Transport and Tourism and its interpretation criteria, etc. revised after the Accident (hereinafter, the “New Ministerial Order etc.”) required that ATS devices of this model or equivalents be installed at curves where a train may be overturned if driven into the curve at the maximum speed between stations, using the risk rate of overturning as the indicator. However, it was not required by law before the Accident that ATS devices be equipped with speed check function or be installed at curves. In addition, only a small number of railway operators had voluntarily installed ATS devices at curves before the Accident, namely, only three (including JR-West) out of all JR companies and only thirteen out of 113 private railway companies; most railway operators had not installed ATS devices at curves. The railway operators which had installed ATS devices at curves before the Accident had different installation standards, and there was no uniform standard like the risk rate of overturning used in the New Ministerial Order etc. The actual selection of spots at which ATS devices had been installed by these railway operators before the Accident was not necessarily correlated with the risk of overturning as evaluated by the risk rate of overturning.

(3) Based on the division of duties at JR-West, plans for the installation of ATS devices, which are security equipment, were in the jurisdiction of the Safety Office of the Railway Operations Headquarters and were supervised by the headquarters’ Senior General Manager, who was thus placed in charge of the installation of ATS devices at curves. The Railway Operations Headquarters had gradually installed improved ATS devices on a line section by line section basis. The installation of these ATS devices along the Fukuchiyama Line, including the Curve, had been underway, but had not yet been completed at the time of the Accident. These devices were actually put into operation in June 2005, approximately two months after the Accident.

(4) The risk rate of overturning at the Curve was in excess of the value at which a train may be overturned towards the outer side of the curve if driven into the curve at the maximum speed between stations. According to the New Ministerial Order, etc., an ATS device with speed check function must thus be installed at the Curve.

However, none of the railway operators in Japan which had installed ATS devices at curves before the Accident, including JR-West, had determined the risk of derailment and overturning using the risk rate of overturning when they selected spots to install ATS devices. In addition, there were more than two thousand curves whose radius was 300 meters or less in the jurisdiction of JR-West. These curves were thus not rare themselves, and the organizations of JR-West had not shared an understanding that the Curve had a specifically higher risk of derailment and overturning than other curves. The Defendants had no recognition that the Curve had a risk of derailment and overturning.

3. The Court’s decision

(1) The charged facts are that the Defendants, who are former presidents of JR-West, had, but failed to fulfill, a professional duty of care to give instructions to install an ATS device at the Curve to the Senior General Manager of the Railway Operations Headquarters, who managed the department responsible for the installation of ATS devices. This is based on the assumption that the Defendants were able to foresee the risk of a train being derailed and overturned at the Curve if driven into the Curve without the driver’s appropriate use of the brakes.

However, it was not required by law before the Accident that ATS devices be equipped with speed check function or be installed at curves, and most railway operators had not installed ATS devices at curves. In addition, none of the railway operators in Japan, including JR-West, had employed before the Accident the method of selecting spots to install ATS devices which was later shown in the New Ministerial Order, etc., namely, determining the risk of derailment and overturning by using the risk rate of overturning. Furthermore, based on the division of duties at JR-West, the installation of ATS devices at curves was left to decision of the Senior General Manager of the Railway Operations Headquarters, who was responsible for matters related to safety measures for railway tracks, leaving the Defendants, who were Representative Directors, with little access to information on the risks entailed by individual curves, based on which information they could have otherwise made such decision. Moreover, there were no circumstances suggesting that the organizations of JR-West shared an understanding that the Curve had a higher risk of derailment and overturning than other curves. Therefore, the Court cannot find that the Defendants were able to recognize that, among more than two thousand similar curves located in the company’s jurisdiction, the Curve had a specifically high risk of derailment and overturning.

(2) With respect to knowledge of the risk of a train being derailed and overturned at the Curve, the designated attorneys assert that knowing as much as that “once the driver significantly exceeds the speed limit, a derailment and overturning will occur” should suffice. As described above, however, under such factual circumstances of this case as where it was not required by law before the Accident that ATS devices be equipped with speed check function or be installed at curves, and where most railway operators had not installed ATS devices at curves, that much knowledge cannot be considered a basis for the duty of care underlying the charged facts of this case.

(3) For the reasons described above, the Court cannot find that the Defendants, who were former presidents of JR-West, had a professional duty of care to give instructions to install an ATS device at the Curve to the Senior General Manager of the Railway Operations Headquarters. Therefore, the decision of prior instance, which endorsed the judgment of the first instance which found the Defendants not guilty, is appropriate.

Accordingly, the Court unanimously decides as set forth in the main text in accordance with Article 414 and Article 386, paragraph (1), item (iii) of the Code of Criminal Procedure. However, there is a concurring opinion of one of the justices, ONUKI Yoshinobu.

The concurring opinion of the justice, ONUKI Yoshinobu, is as follows:

While I agree with the opinion of the Court, I would like to add my opinion considering the appellant’s arguments.

1. In this case, it has been asserted that the Defendants had, but failed to fulfill, a “professional duty of care to give instructions to install an ATS device at the Curve (or, in the case of Defendant C, to install an ATS device at the Curve on a preferential basis) to the Senior General Manager of the Railway Operations Headquarters, who managed the department responsible for the installation of ATS devices.” To support the assertion that the Defendants had such a duty of care or a duty to avoid consequences, the Defendants must have had a sufficient knowledge, or must have been sufficiently able to foresee the consequences, to be imposed on such a duty. In this regard, the charged facts of this case are that the “Defendants were able to foresee the risk of a train being derailed and overturned at the Curve if driven by the driver into the Curve without the appropriate use of the brakes.” It is appropriate to understand that what this means is the awareness of the risk of derailment and overturning entailed specifically by the Curve, out of a large number of curves located in the jurisdiction of JR-West (and, if the Defendants were aware of the risk of derailment and overturning, they must have naturally been able to foresee the resulting death and injury of passengers and others).

2. Based on the above assumptions, I have considered whether or not the risk was foreseeable in this case, as follows. As the facts supporting that the Defendants were able to foresee the risk as described above, the charged facts list the following: (i) that the Work, which was associated with the changes made to the arrangement of railway tracks at Amagasaki Station, reduced the radius of the Curve, resulting in a reduction of the speed limit; (ii) that, while JR-West had been installing ATS devices at curves whose radius was less than 450 meters, the radius of the Curve fell significantly below this standard value as a result of the Work; (iii) that several derailments and overturns had occurred in the past at curves of other companies due to excessive speed; and (iv) that a revision of the timetable significantly increased the number of rapid-service trains. However, even assuming that the Defendants were aware of these facts, this does not seem to directly mean that the Defendants were able to become aware of the risk entailed specifically by the Curve or of the necessity of installing an ATS device specifically at the Curve, as compared to as many as more than two thousand curves whose radius was smaller than that of the Curve.

Instead, there were circumstances in this case, as explained in the opinion of the Court, that hinder the Court from finding that the Defendants had a duty to be aware of the risk of occurrence of an accident at the Curve and to give instructions to install an ATS device at the Curve to the Senior General Manager of the Railway Operations Headquarters, such as that it was not required by law before the Accident that ATS devices be equipped with speed check function or be installed at curves, and that most railway operators had not installed ATS devices at curves. Furthermore, in light of the fact that JR-West was in the course of executing ATS installation works in line sections, including the Curve, it is unlikely that there were circumstances where the Defendants had to dare to ignore safety and had to postpone the installation of an ATS device at the Curve despite their awareness of the risk entailed by the Curve, or had to avoid becoming aware of the risk itself.

For the above reasons, it is difficult to find that the risk entailed specifically by the Curve was foreseeable by the Defendant.

3. The appellants have also argued, by citing the Supreme Court’s precedent regarding a case of large-scale fire, that the foreseeability of the causal events in this case should be sufficiently supported if the Defendants had been aware of the risk enough to know that “once the driver significantly exceeds the speed limit, a derailment and overturning will occur.”

If knowing as much as that a driver may generally fail to use the brakes at a curve and that this may result in the train being overturned provides a basis for a duty to give instructions to install ATS devices at curves, ATS devices must be installed at the same time at a large number of curves located in the jurisdiction of JR-West. However, forcing under criminal penalty the installation of ATS devices at so many curves at the same time is not appropriate as it would impose an excessive duty on the Defendants, under such factual circumstances of this case as that it was not required by law before the Accident that ATS devices be installed at curves and that most railway operators had not installed ATS devices at curves. The level of foreseeability that supports negligence should be determined relatively in relation to the duty of care or the duty to avoid consequences in question, depending on the specific factual circumstances of each case. When applying this to the judicial precedent cited by the appellants, I do not consider it appropriate to treat the issue of foreseeability in the case of large-scale fire as the same as that in this case, since in the former case there were certain circumstances that provided a basis for duties, such as that countermeasures had not been taken despite knowledge of lack of disaster prevention systems or fire-prevention equipment required by law based on the risk of fire, whereas no such circumstances have been found in this case.
Justice YAMAMOTO Tsuneyuki

Justice ONUKI Yoshinobu

Justice ONIMARU Kaoru

Justice KANNO Hiroyuki
(This translation is provisional and subject to revision.)