2000.03.24

1998 (O) 217

Minshu Vol.54, No.3, at 1155

Judgment admitting an employer's liabilities for compensating damages under article 751 of the civil code in the case of an employee having committed suicide due to being afflicted with depression

claim for compensation

Judgment of the Second Petty Bench, partly dismissed, partly quashed and remanded

Tokyo High Court, Judgment of September 26, 1997

1. In a case where A, an employee, who worked in a major advertising company became chronically depressed and committed suicide after working long overtime for more than a year, A was working under a general and comprehensive business instruction to finish the given work within the time limit, and had no choice but to do long overtime work on a continuous basis as mentioned above. A's superiors were aware that A was constantly working excessively long hours and that his state of health had deteriorated but failed to take measures to alleviate the workload of A, and as a result, A became mentally and physically exhausted, which triggered chronic depression and as the state of depression deepened, extemporaneously committed suicide. Under such circumstances, the employer is liable for compensation based upon Article 715of the Civil Code.

2. In a claim for compensation based upon the infliction of mental or physical harm on an employee, where the character of the employee and the resulting manner of the execution of work had contributed to the occurrence or expansion of the damage, unless the character of the employee is outside the scope which is normally expected in employees involved in similar work, when determining the amount of compensation, the court cannot take into account the character of the employee and similar factors as a mental factor by applying, with the modification, Article 722, paragraph 2 of the Civil Code.

Article 709 of the Civil Code, Article 715 of the Civil Code, Article 722, paragraph 2 of the Civil Code

1. The jokoku appeal of the appellant in 1998 (o) No.217 shall be dismissed.
2. Part of the judgment of the original instance court in which the jokoku appellants in 1998 (o) No.218 lost shall be quashed and reversed to the Tokyo High Court.
3. The cost of the jokoku appeal concerning Item 1 shall be borne by the jokoku appellant in 1998 (o) No.217.

Part I. On the grounds of the jokoku appeal items 1 to 5 of the representative of the jokoku appeal in 1998 (o) No.217, YM and ET:

I. In the present case, the jokoku appellees in 1998 (o) No.217and the jokoku appellants in 1998 (o) No.218 who are heirs of B (hereinafter, each of them e.g. 'plaintiff in the first instance H', and both of them 'plaintiffs in the first instance') claimed payment of compensation vis a vis the jokoku appellant in 1998 (o) No.217 and the jokoku appellee in 1998 (o) No.218 (hereinafter, the 'defendant in the first instance') on the ground that they had inherited the claim for compensation of B vis a vis the defendant in the first instance by virtue of Article 715 of the Civil Code. The facts ascertained by the original instance court on the argued points can be regarded as correct in light of the evidence as listed in the judgment of the original instance court. According to the judgment of the original instance court, the outline of the facts is as follows:

1. B was born on November 30, 1966 as the eldest child of the plaintiffs in the first instance. B was healthy, good at sports, was lively, amenable, had a sense of responsibility, and in dealing with various matters, was patient, and had a tendency of towards perfectionism. Between 1990 and 1991, B and the plaintiffs in the first instance were living together, and the plaintiffs both had a job.

2. B graduated from C University in March 1990 and on April 1 of the same year, was accepted as an employee of the defendant in the first instance and joined the company with 178 other recruits. At the health check conducted on B two months before employment began, there was no particular problem except for an abnormality in the perception of colour.

3. After completing the training for new employees, B was assigned to the G promotion division of the F department of the defendant in the first instance on June 17, 1990. The general manager of the division was D. The division had 13 employees who were divided into two groups. B was assigned to a group which had E as a group leader, and was to deal with the business of the I business department and J department together with E and 2 other employees.

4. Around 1990, according to the office rules of the defendant in the first instance, there were two holidays per week in principle, the work hours were between 9.30 am and 5.30 pm, and the recess was between 12 am and 1 pm. There was an agreement between the defendant in the first instance and the trade union on the basis of Article 36 of the Labour Standard Law before the amendment by Law No.112 of 1998 (hereinafter, 'the 36 Agreement'), that the maximum overtime of male employees in each working day was 6.5 hours and in the case of the G promotion division, the maximum monthly overtime of each month between July 1990 and August 1991 was set in accordance with the separate column 'maximum overtime'.

In the company - defendant in the first instance, overtime was to be reported by each employee in a document called the work report and while the employee was to seek the permission of the head of the section for overtime, in reality, employees sought permission after the overtime had been completed. Within the company, it was common for employees to work long overtime and there were many employees who reported overtime in excess of the maximum hours for each day or monthly total as provided by the 36 Agreement. This was raised as an issue at the meeting with the trade union. It was also common for employees to report less overtime than the actual overtime. The defendant in the first instance was aware of the situation and also aware that the problem was the overtime concentrated on a particular section or a particular individual. The defendant in the first instance had created a system in which the working hours the employees who worked between 10.00 pm and 5 am were to be treated in an exceptional way, and also secured five rooms each working day in a hotel for those who finished work after 12.00 am and who had to come to the office the next day. However, this was not utilised by new recruits due to insufficient publicisation by the defendant in the first instance.

5. At the beginning, when B was assigned to the G promotion division, he was attached to the group leader and during the daytime, mostly worked together with E. The primary content of the work was to solicit companies to become sponsors of a radio programme by using business proposals, and to plan and implement events which companies organised for advertisement. On a working day, B left home by 8 am, arrived at the office by 9 am and after tidying up the room and doing other work assigned to new recruit, busied himself with communication and meetings with companies which were to be solicited, other sections of the defendant in the first instance and production companies, and after taking a meal around 7 pm, started preparing business proposals and promotion materials. B was keen and positive in his work, active and was well received by the superiors and business contacts.

6. The total monthly overtime which B reported in the work report between July 1990 and August 1991 is indicated in the attached column on the reported overtime. However the overtime reported above was substantially less than the actual overtime. The number of times B had left the office after 2 am in the above months was as indicated in the column 'leaving office after 2 am' (the number in brackets in the column is the number of times B stayed in the office until morning). B occasionally had a meal, short sleep, and dealt with private matters before leaving the office, but most of the time was devoted to work.

7. B, when he was first assigned to the G promotion division, returned home within the same day, but after August 1990, often returned home around 1 or 2 am the next day. In the document dated August 20 which contains the advice of D to B, B's approach to work and his persistence were praised, and also there was a comment to the effect that it was important in the future to finish the work within a certain period. On the other hand, B commented in the document which he submitted to the defendant in the first instance that he felt happy when his business proposal was successful and that he was satisfied with being entrusted more work than he had expected, while he listed chronic overtime until midnight as a ground for discontent. The result of the health check conducted in the autumn of the same year showed the same result as the test conducted before employment.

8. Until late November 1990, B returned home, at the latest, by 4-5 am the day after he had left for the office, but from around this time, there were days when he did not return home, or stayed in the office which I, the plaintiff in the first instance, was using in Minato-ku, Tokyo. The plaintiffs in the first instance became concerned that B might damage his health due to overwork, and I advised him to take paid leave, but B did not accept this on the ground that i) there was no one to substitute him, and therefore, he would later suffer, ii) he had asked the superior for leave, but the superior had asked him whether the work was all right, and it was difficult to take leave.

9. From around January 1991, B began to do 70% of his work on his own. In the document which B submitted to the defendant in the first instance around this time, it was indicated that he had come more or less to grasp the gist of the work and could do the work in a systematic way. As a goal for the future, more efficiency in the work and observance of the time limit were listed, and also that in relation to the extent of the work satisfaction, the amount of work was rather too much. The assessment of the superiors of the work of B was generally good, and in the document which D had prepared around this time, it was reported that B was very conscientious and had an amenable character, listening to his seniors.

10. Around March 1991, D pointed out to E that B tended to spend the night in the office, and E advised B to go home and have a proper sleep, and if the work could not be finished, he should come to the office early. The assessment of D on B around this time was that he was doing well considering the period since his employment. In the financial year 1990, B was entitled to 10 days of paid leave, but he had actually taken 0.5 day.

11. The G promotion division which B had belonged had no new recruit until July 1991. After July 1991, B began to work separately from the group and covered the business related to I business department and part of K business department and supported part of the J business department.

From around this time, the number of days in which B did not return home increased, and even if he returned home, he left for the office again by 8 am. Y, the plaintiff in the first instance, cared for B's health by preparing a nutritious breakfast and tried to reduce his burden by taking him close to the station in her car. On the other hand, H, the plaintiff in the first instance, seldom had time to see B. The plaintiffs in the first instance had their health impaired from around this time, because of the their concern about B, and became insomniac. On the other hand, B, due to the state of work as mentioned above and the accompanied lack of sleep, became totally exhausted mentally and physically. During the work, he was not lively, looked pessimistic, pale, and his eyes were sometimes not focussed. At this time, E was aware that B's state of health was not normal.

12. B went to the office almost every day between August 1 and 23 of 1991 except for a trip between August 3 and 5. B, for the purpose of the trip obtained paid leave, which was the first in the financial year 1991. In August, B told E that he was not confident of himself, did not understand what he himself was saying, and could not sleep.

13. On August 23, 1991, B returned home around 6pm and left home by car for E's villa in Nagano Prefecture in order to implement an event which a customer was to hold in Nagano the next day. On this occasion, E noticed that the behaviour of B was not normal. B was engaged in the implementation of the event from 24 to 26 of August, and after the end of the event, left the venue in his car around 5 pm of August 26.

14. B returned home at 6 am on August 27, 1991, and told his brother that he would go to the hospital, and at 9 am, phoned the office and informed them that he was taking leave due to ill health. He was found to have hung himself at 10 am in the bathroom of his home.

15. Chronic depression is an emotional psychiatric disease which comprises depression and withholding. The state of depression is felt by the patient himself as a depression and a decrease in motivation, and from the outside, the patient demonstrates a depressed expression and symptoms of autonomic imbalance. Those who have suffered chronic depression commit suicide more often than people with normal health; they are particularly prone to commit suicide when the state of the disease deteriorates, at the time the disease is being cured, or at the point when the burden was suddenly alleviated by achieving a goal.

It is well known in the world of psychiatry that constant exhaustion, lack of sleep, or stress over a long period cause a state of depression and incur reactionary depression. On the other hand, it is becoming well known that the mutual reaction between the internal factors involving the patient and the circumstances surrounding the patient plays a role in causing chronic depression. Those who are keen and conscientious in work, persistent, who have a strong sense of duty, and are classified of a persistent nature are known to be susceptible to chronic depression.

For the type of chronic depression which occurs after excessive mental and physical exhaustion, male patients, in many cases, before incurring the disease, had a serious character, had a strong sense of responsibility, and did not want to lose on the one hand, while on the other hand, did not express their own feelings and were sensitive in their human relations, and also tended to set a high goal in their work which is in excess of their external and internal capability.

As mentioned above, B was in a state of exhaustion mentally and physically by July 1991, and as a result, came to suffer chronic depression, at the latest, by early August. On August 27, by finishing the above event and by achieving the goal for work, he became relieved, while at the same time, felt empty in the expectation that days of long work would continue, the state of depression deepened, and suddenly committed suicide.

II. Based upon the above facts, the ruling of the original instance court which acknowledged the liability of the defendant in the first instance based upon Article 715 of the Civil Code shall be examined.

1. It is well known that if exhaustion or mental stress accumulates by continuing long working hours on working days, there is a risk of damaging an employee's health. The Labour Standard Law sets restrictions on working hours, and Article 65-3 of the Law on Labour Health and Hygiene provides that entrepreneurs as provided by this Law should manage the work of employees by caring for the health of employees. This is understood to be aimed at the prevention of such a risk. Thus, the employer is understood to have a duty of care to ensure that the employee's mental and physical health is not damaged by the excess accumulation of exhaustion and mental stress accompanying the execution of work when assigning work to the employee and managing the work. Those who are empowered to direct and supervise the work of the employee on behalf of the employer are under an obligation to exercise their power in accordance with the content of the above duty of care.

2. The work in which B was involved after he was assigned to the G promotion division was primarily communication and discussion with the relevant persons, and the preparation of business proposals and materials. The statutory working hours were mostly spent on communication and discussions, and only after the normal working hours, could he start preparing proposals and materials, and therefore, it was usual for him to do long hours of overtime.

B had some discretion as to the allocation of time in executing the work concerning business proposals, but in light of the fact that D, the superior, had stressed to B that the time limit of the work should be observed, B was working under a general and comprehensive business instruction to finish the given work within the time limit, and had no choice but to do long hours of overtime work on a continuous basis as mentioned above. In the company - defendant in the first instance, it had been raised as a problem that employees often worked long overtime, and it was acknowledged that the overtime reported by employees was not necessarily in line with the reality. D was aware, at the latest, by March 1991 that the overtime reported by B was substantially less than the actual overtime, and B often stayed overnight in the office for work. E was aware in July 1991 that B's state of health had deteriorated.

Nevertheless, D and E, except for E, under instruction by D, told B to go home, sleep, and if the work could not be done, to come to the office early next day, presupposing that the work should be finished by the time limit, but never took measures to control the volume of work of B in an appropriate way. On the contrary, from July 1991, B's workload was increased. As a result, B became mentally and physically exhausted, which triggered chronic depression by early August 1991 at the latest, and on August 27, as the state of depression deepened, suddenly committed suicide.

[Summary 1] The original instance court took into consideration the above mentioned information on the occurrence of chronic depression, and found that there was adequate causation between B's work and the suicide by chronic depression, and ruled that D and E, who were immediate superiors of B, were negligent in failing to take measures to alleviate the workload of B, while being aware that B was constantly working excessively long hours and that his state of health had deteriorated and ruled that the defendant in the first instance was liable for compensation on the basis of Article 715 of the Civil Code. This is justifiable and the arguments are not acceptable.

Part II On the grounds of jokoku appeal item 6 by the ET, the representative of the jokoku appellant in 1998 (o) No.217, and of MF, the representative of the jokoku appellant in 1998 (o) No.218:

I. The original instance court has applied or applied with modification, Article 722 paragraph 2 of the Civil Code and reduced the amount of compensation except for the lawyers' fees by 30%.

However, the following points in the above ruling are not justifiable.

II. On the reduction of compensation on the ground of B's character:
1. The original instance court ruled that B had the above-mentioned susceptibility to chronic depression and pre-disease characteristics, and while such characteristics were regarded as a virtue in normal life, nevertheless as a result of these characteristics, it could not be denied that the work of B increased, the work was delayed, and the allocation of time became inappropriate, and the situation arose where B was concerned about the result of work which was not actually his responsibility, and thus these characters and the situation of the work based upon them have contributed to the occurrence and expansion of damage, i.e. suicide by chronic depression, and therefore, in determining the amount of compensation payable by the defendant in the first instance, these elements should be taken into account by applying Article 722, paragraph 2 of the Civil Code with modification.

2. In cases of claims for compensation by a victim of bodily harm, the court, when determining the amount of compensation, may take into account characteristics of the victim and other psychological factors which contributed to the occurrence or expansion of damage by applying with modification Article 722, paragraph 2 of the Civil Code in light of the idea of the ensurance of a fair allocation of damage which is the underlying idea of the law on compensation (Supreme Court 1984 (o) No.33, Judgment of the First Petty Bench, April 21, 1988, Minshu 42-4-243). The same basically applies to claims for compensation based upon an excess workload on an employee. However, it goes without saying that the characteristics of employees working in companies vary. Unless the characteristics of the employee who is involved in particular work are outside the scope of the variety of characteristics of employees which are normally expected in employees engaged in similar work, even if the characteristics of the employee and the manner of the work resulting from it had contributed to the occurrence or expansion of the damage which occurred to the employee, such a situation should be foreseen by the employer. The employer or those who in place of the employer, direct and supervise the employee at work, assign the employee to a certain section and determine the content of the work by judging whether the employee is suitable for particular work, on that occasion, can take into account characters of the employee. Therefore, [Summary 2] unless the character of the employee is outside the scope as mentioned above, the court, in a claim for compensation based upon excess workload, when determining the amount of compensation, cannot take into account the characteristics of the employee and the manner of executing the work as a psychological factor.

In the present case, the characteristics of B can often be seen among people in society. D, the superior of B and others positively valued B's character in relation to his work. If this is the case, the characteristics of B cannot be regarded as outside the scope of the variety of characteristics expected of employees engaged in similar work, and therefore, when determining the amount of compensation payable by the defendant in the first instance, the above characteristics of B and the manner of work resulting from them cannot be considered. The above ruling of the original instance court is unlawful for erring in the interpretation and application of law.

III. On the reduction of compensation based upon the fault of the plaintiffs in the first instance:
1. The original instance court ruled that since the plaintiffs in the first instance lived together with B since they were the parents of B, they more or less understood his situation of work and life, and therefore, could have foreseen that B would suffer from chronic depression and commit suicide, and also could have taken measures to improve the above situation of B, but have failed to take any specific measures, and the court ruled that this should be taken into account when determining the amount of compensation payable by the defendant in the first instance.

2. However, the above damage of B had emerged because B's workload was excessive. B had graduated from the university, had become an employee of the defendant in the first instance, and was engaged in the work of the defendant upon his own will and judgment as an independent member of society. Although B had lived together with the plaintiffs in the first instance who are his parents, it cannot easily be acknowledged that the parents were in a position to improve the working situation of B. Under the above circumstances, the above ruling of the original instance court is unlawful for erring in the interpretation and application of law.

IV. The error in the above II and III of the ruling of the original instance court obviously affects the conclusion of the judgment of the original instance court. The points in the argument of the plaintiffs in the first instance concerning the above are with grounds, and even without ruling on the other part of the arguments, the part of the judgment of the original instance court in which the plaintiffs in the first instance lost cannot be but quashed. On the other hand, the arguments of the defendants in the first instance lacks their presupposition and cannot be accepted.

Part III Conclusion

As mentioned above, the jokoku appeal of the defendants in the first instance shall be dismissed, and on the basis of the jokoku appeal of the plaintiffs in the first instance, the part of the judgment of the original instance court in which the plaintiffs in the first instance has lost shall be quashed, and in order to have this part further examined, the case shall be reversed to the original instance court.

Therefore, the justices unanimously rule as the main text of the judgment.

JusticeKAWAI Shinichi
JusticeKITAGAWA Koji
JusticeKAMEYAMA Tsugio
JusticeKAJITANI Gen