Judgments of the Supreme Court

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2019 (Ju) 596

Date of the judgment (decision)

2021.05.17

Case Number

2019 (Ju) 596

Reporter

Minshu Vol. 75, No. 4

Title

Judgment concerning a case in which the court determined that the determination of the court of prior instance, which uniformly denied that the method of proof adopted by the plaintiffs can prove the fact that building materials containing asbestos manufactured and sold by specific building material manufacturers arrived at construction sites where specific construction workers were working a significant number of times, contains illegality of violation of the rules of thumb or the rules of evidence collection

Case name

Case seeking compensation for loss or damage

Result

Judgment of the First Petty Bench, quashed and remanded

Court of the Prior Instance

Tokyo High Court, Judgment of March 14, 2018

Summary of the judgment (decision)

The determination of the court of prior instance, which uniformly denied that the method of proof consisting of the steps mentioned in (1) to (5) below can prove the fact that building materials containing asbestos manufactured and sold by specific building material manufacturers arrived at construction sites where specific construction workers were working a significant number of times, contains illegality of violation of the rules of thumb or the rules of evidence collection.

(1) Classify building materials containing asbestos listed in the database that has been made public by the Ministry of Land, Infrastructure, Transport and Tourism and the Ministry of Economy, Trade and Industry, etc. into multiple types of materials, and out of those types of materials, for each type of work of construction workers, select types of materials that each of the construction workers directly handles with high frequency and for a long period of time and that are considered to cause the construction worker to be exposed to a large amount of asbestos particulates during handling.

(2) Out of the building materials containing asbestos that belong to the types of materials selected as mentioned above, exclude those whose sales volume is small in the area where the aforementioned construction workers were engaged in construction work, etc., and for each of the aforementioned construction workers, exclude building materials for which the overlap between their manufacturing periods and the period of each worker's engagement in construction work is likely to be less than one year, etc.

(3) Consider that the building materials containing asbestos that were identified for each of the aforementioned construction workers through the aforementioned steps (1) and (2) and for which market shares in the building materials of the same type, respectively, are basically 10% or more, are highly likely to have arrived at construction sites where the aforementioned construction workers were working, in consideration of the results of the probability calculations using their market shares.

(4) Where any of the aforementioned construction workers makes a statement, etc. concerning the name, manufacturer, etc. of a building material containing asbestos which he/she handled based on his/her specific memory, consider identifying the building material containing asbestos that arrived at the construction site where the relevant construction worker was working based on that statement, etc.

(5) Where building material manufacturers point out that the sales volumes of their own building materials containing asbestos were small or other facts based on specific grounds, consider excluding the relevant building materials from those identified through the aforementioned steps (1) to (4).

References

Second sentence of Article 719, paragraph (1) of the Civil Code and Article 247 of the Code of Civil Procedure

Civil Code

(Liability of Joint Tortfeasors)
Article 719 (1) If more than one person has inflicted damage on another person by a joint tort, each of them is jointly and severally liable to compensate for the damage. The same applies if it cannot be ascertained which of the joint tortfeasors inflicted the damage.

Code of Civil Procedure

(Principle of the Freedom of Personal Conviction)
Article 247 In reaching a judgment, the court decides whether to find allegations of fact to be true based on its freedom of personal conviction, in light of the entire import of oral arguments and the results of the examination of evidence.

Main text of the judgment (decision)

Of the judgment in prior instance, the part concerning the claims of the appellants of final appeal stated in row 1 of each of the lists from List 1 to List 19 attached to this judgment against the appellees of final appeal stated in row 2 of each of the same lists is quashed, and this case is remanded to the Tokyo High Court in relation to the same part.

Reasons

Concerning Part II, Chapter II, Reason II-1 to II-3 for a petition for acceptance of final appeal stated by the counsel for final appeal, ONODERA Toshitaka, et al.

1. The appellants are persons who argue that they were affected with diseases associated with asbestos, such as lung asbestosis, lung cancer, and mesothelioma, as a result of having been exposed to asbestos particulates when engaging in construction work (286 persons, excluding 19 persons, specifically, Plaintiff Nos. 1-17, 1-60, 1-67, 1-102, 1-119, 1-122, 1-129, 1-208, 1-209, 1-218, 1-303, 2-5, 2-38, 2-49, 2-74, 2-80, 2-102, 2-110, and 2-204, from the 305 persons stated in the "Names of Disaster Victims" column in Attachment 3-2, "List of Upheld Amount, etc.", of the judgment in prior instance; hereinafter each of those persons is referred to as a "Disaster Victim" and all of them are referred to as the "Disaster Victims") or their successors. In this case, the appellants argue that the Disaster Victims were affected with the aforementioned diseases because the appellees manufactured and sold building materials containing asbestos without indicating that there was a risk of being affected with diseases associated with asbestos as a result of being exposed to particulates arising from those building materials containing asbestos, and demand the appellees make compensation for loss or damage based on a tort.

2. The appellants argue that the Disaster Victims had engaged in construction work at many construction sites over a long period of time and had been cumulatively exposed to asbestos particulates arising from building materials containing asbestos manufactured and sold by the appellees and that the appellees are thus jointly and severally liable for compensation for loss or damage through application or application by analogy of the second sentence of Article 719, paragraph (1) of the Civil Code. According to the case records, it is obvious that the appellants submitted evidence based on the method of proof consisting of the steps mentioned in (1) to (5) below (hereinafter referred to as the "Method of Proof") in order to prove the fact that building materials containing asbestos manufactured and sold by specific appellees arrived at construction sites where specific Disaster Victims were working a significant number of times (hereinafter referred to as the "Fact of Arrival at Construction Sites").

(1) Make 42 types of materials classification for 2153 building materials containing asbestos listed in the February 2013 version of "Database on Building Materials Containing Asbestos," which is made public by the Ministry of Land, Infrastructure, Transport and Tourism and the Ministry of Economy, Trade and Industry (hereinafter those ministries are referred to as "MLIT" and "METI," respectively) as the result of research on the names, manufacturers, and manufacturing periods, etc. of building materials containing asbestos manufactured and sold in the past. In addition, establish a type of materials with regard to admixtures, which are building materials containing asbestos that are not listed in said database, and identify the names, manufacturers, manufacturing periods, etc. of building materials that belong to said type based on research conducted by the counsel for the appellants. Out of the aforementioned 43 types of materials in total, for each type of work of the Disaster Victims and in light of the content of ordinary work, etc., select types of building materials containing asbestos that each of the Disaster Victims directly handles with high frequency and for a long period of time and that are considered to cause the Disaster Victim to be exposed to a large amount of asbestos particulates while handling.

(2) Out of the building materials containing asbestos that belong to the types of materials selected as mentioned above, exclude those whose sales volume is small in the area where the Disaster Victims were engaged in construction work, those which are used for facilities, etc. other than buildings, and those which are used by specific construction agencies, etc. as building materials that are unlikely to have arrived at construction sites where the Disaster Victims were working. Furthermore, in the same manner, for each of the Disaster Victims, exclude those for which the overlap between their manufacturing periods and the period of each Disaster Victim's engagement in construction work is likely to be less than one year, etc. and those for which the types of major buildings where he/she was engaged in construction work do not often overlap with the types of buildings where those building materials are used.

(3) Consider that the building materials containing asbestos that were identified for each of the Disaster Victims through the aforementioned steps (1) and (2) and for which market shares in the building materials of the same type (hereinafter these market shares are simply referred to as the "shares"), respectively, are basically 10% or more are highly probable to have arrived at construction sites where the Disaster Victims were working, in consideration of the results of the following probability calculation using those shares. That is, in the case where the probability of a specific building material containing asbestos being used at each construction site is 10%, in light of the share of the building material, if a specific Disaster Victim works at 20 construction sites, the probability of the building material arriving even once at a construction site where the Disaster Victim works is about 88% (the calculation formula is "1 ? (1 ? 0.1)20"). The probability becomes about 96% if the Disaster Victim works at 30 construction sites (the calculation formula is "1 ? (1 ? 0.1)30"). The Disaster Victims, respectively, had basically worked at over dozens of construction sites (at over 1,000 construction sites in some cases) during the period in which the periods of their engagement in construction work and manufacturing periods of the building materials containing asbestos identified through the aforementioned steps (1) and (2) overlap with each other. Therefore, building materials containing asbestos whose shares are basically over 10% can be considered to be highly likely to have arrived at construction sites where the Disaster Victims were working.

(4) When any of the Disaster Victims makes a statement, etc. concerning the name, manufacturer, etc. of a building material containing asbestos which he/she handled based on his/her specific memory, consider identifying the building material containing asbestos that arrived at the construction site where the relevant Disaster Victim was working based on that statement, etc.

(5) When the appellees point out that the sales volumes of their own building materials containing asbestos were smaller than those argued by the appellants or that the marketing channels of their own building materials containing asbestos were limited, etc. based on specific grounds, consider excluding those building materials from the building materials identified through the aforementioned steps (1) to (4). If the appellees do not make such statements with regard to any of the building materials containing asbestos identified by the appellants, that building material can be considered to have arrived at construction sites where the Disaster Victims were working.

3. The court of prior instance determined as follows and ruled that the appellants' claims should be dismissed.

(1) It is considered necessary to prove the Fact of Arrival at Construction Sites in order to say that the appellees are liable through application or application by analogy of the second sentence of Article 719, paragraph (1) of the Civil Code.

(2) However, in consideration of the circumstances mentioned in A. to E. below, it cannot be said that the Fact of Arrival at Construction Sites can be proven by the Method of Proof. Therefore, the appellees never become liable through application or application by analogy of the second sentence of Article 719, paragraph (1) of the Civil Code.

A. The MLIT database was created for the purpose of making it possible to easily obtain information about the status of asbestos content of building materials used in a building upon conducting the demolition work, etc. thereof However, information in the database should be considered to be of low credibility, taking into account the fact that the database is accompanied by a precaution to the effect that neither MLIT nor METI guarantees the accuracy of the content of the database. Therefore, the names, manufacturers, manufacturing periods, etc. of building materials containing asbestos that have been manufactured and sold up until the present cannot be found based on the database.

B. Research reports on the shares of building materials submitted by the appellants (hereinafter referred to as the "Materials on Shares") were prepared by private market research companies and industry groups, etc. for the purpose of providing them for the sake of industry participants' reference for exploring market trends. In addition, those reports should be considered to be of low credibility, taking into account the fact that they were not prepared continuously based on the same materials throughout the sales periods of the relevant building materials. Therefore, the shares of building materials cannot be found based on the Materials on Shares.

C. In order to find by inference the fact that a certain building material containing asbestos arrived at a construction site where a certain Disaster Victim was working, in consideration of the results of the probability calculation using the share of that building material, the premise is that the arrival of the building material at each construction site completely depends on the element of chance and that the building material will arrive at each construction site with the probability precisely according to its share. However, whether or not a building material arrives at each construction site is affected by individual factors, such as the distribution channel of the building material, business relationships among contractors and subcontractors, etc., distance between the place of shipment of the building material and a construction site, the nature, intended use, building cost, etc. of the relevant building. Therefore, the aforementioned premise is not fulfilled. Consequently, the aforementioned fact cannot be found by inference.

D. Some of the Disaster Victims make statements, etc. about the names, manufacturers, etc. of building materials containing asbestos they handled based on their memory. However, such facts cannot be found based on their statements, etc. because there is no supporting evidence.

E. It cannot be categorically considered unnatural even if the appellees have not stored materials concerning their own building materials containing asbestos from early periods, such as the period from 1965 to 1974 and the period from 1975 to 1984. Therefore, even if the appellees do not conduct activities for proof to prevent the finding by the Method of Proof, that fact should not be taken into account in relation to the proof of the Fact of Arrival at Construction Sites.

4. However, the determination of the court of prior instance mentioned in 3.(2) above cannot be upheld for the following reasons.

(1) The court of prior instance states that information in the MLIT database is of low credibility. However, according to the facts found by the court of prior instance, the purpose of creation of the MLIT database is as pointed out in 3.(2)A. above. If so, the information in the database is important for preventing the demolition workers of buildings, etc. from being exposed to asbestos particulates. Therefore, it is legitimate to take measures to increase the accuracy of the information. According to the facts found by the court of prior instance, the MLIT database was created by collecting data that had been made public by government agencies, public offices, industry groups, building material manufacturers, etc. and by gaining cooperation therefrom, including provision of data they possessed, and was made public in fiscal 2006 for the first time. After then, the database has been renewed by addition, correction, deletion, etc. basically once a year. Information in the database has been deliberated on and decided by the Committee on the Creation of Database on Building Materials Containing Asbestos consisting of the employees of the manufacturers of building materials containing asbestos, officials of the competent departments of MLIT and METI, university researchers, etc. According to these facts, the MLIT database has been sequentially renewed by experts over a considerable period of time since it was created by collecting data, etc. that had been made public or possessed by government agencies, public offices, industry groups, building material manufacturers, etc. Therefore, it is possible to say that information about the names, manufacturers, manufacturing periods, etc. of building materials containing asbestos in the database is at least reasonably credible.

Therefore, it is considered possible to find the names, manufacturers, manufacturing periods, etc. of building materials containing asbestos that have been manufactured and sold up until the present based on the information in the MLIT database. The court of prior instance should be considered to be extremely unreasonable in that it immediately determined that it is impossible to make the aforementioned finding based on the aforementioned information in the database, on the grounds of the circumstances pointed out in 3.(2)A. above.

(2) The court of prior instance states that the Materials on Shares are of low credibility. However, according to the facts found by the court of prior instance, the purpose of creation of the Materials on Shares is as pointed out in 3.(2)B. above. If so, it is possible to say that the Materials on Shares were expected to have reasonable accuracy in line with the purpose of their creation. According to the case records, the Materials on Shares appear to show shares in fiscal years close to the time of their creation. Therefore, it is possible to say that those who created the Materials on Shares could calculate the reasonably valid shares of building materials at that time by collecting data that had been reported, published to the public, or otherwise available and by conducting research, including interviews with industry groups and building material manufacturers, etc.

Therefore, it is considered possible to find the shares of building materials based on the Materials on Shares after considering the specific content thereof (if the appellees have not pointed out the existence of any error in the information about their own building materials stated in the Materials on Shares based on specific grounds, by also taking it into account). Consequently, the court of prior instance should be considered to be extremely unreasonable in that it immediately determined that it is impossible to make the aforementioned finding based on the Materials on Shares, on the grounds of the circumstances pointed out in 3.(2)B. above.

(3) As a reason that the Fact of Arrival at Construction Sites cannot be found by inference based on probability calculations using the shares of building materials, the court of prior instance states that whether or not a building material containing asbestos arrives at each construction site is not decided based the element of chance but is affected by individual factors pointed out in 3.(2)C. above.

However, it can be said that in the Method of Proof adopted by the appellants, a considerable portion of the influence of the individual factors pointed out in 3.(2)C. above has been taken into account in the process of identifying building materials containing asbestos for which the Fact of Arrival at Construction Sites can be found through the steps mentioned in 2.(1) and (2) above. On that premise, it is obvious based on the rules of thumb that the probability of finding the Fact of Arrival at Construction Sites becomes higher when the share of an identified building material containing asbestos in the building materials of the same type is higher and a specific Disaster Victim worked at a larger number of construction sites during the manufacturing period of that building material. Then, if the appellees have not specifically pointed out any other individual factor to be taken into account, it should be considered possible to find by inference the Fact of Arrival at Construction Sites in consideration of the results of the probability calculation in light of the aforementioned share and the aforementioned number of construction sites.

Therefore, the court of prior instance should be considered to be extremely unreasonable in that it immediately determined that it is impossible to find by inference the Fact of Arrival at Construction Sites in consideration of the results of the probability calculation using the share of a specific building material, on the grounds of the existence of the influence of the individual factors pointed out in 3.(2)C. above.

(4) The court of prior instance determined that it is impossible to find the names, manufacturers, etc. of building materials containing asbestos that the Disaster Victims handled based on the Disaster Victim's statements concerning those matters based on their memory because there is no supporting evidence. However, it is considered possible to find those facts in some cases by examining the credibility of the aforementioned statements, etc. in light of various circumstances, such as the concreteness of the content thereof, reasons for remembering those facts, and consistency with other circumstances. Therefore, the court of prior instance should be considered to be extremely unreasonable in that it immediately determined that it is impossible to make the aforementioned finding based on the aforementioned statements, etc., only on the grounds of absence of supporting evidence.

(5) As mentioned in 3.(2)E. above, the court of prior instance states that the fact that the appellees do not conduct activities for proof to prevent the finding by the Method of Proof should not be taken into account in relation to the proof of the Fact of Arrival at Construction Sites. However, according to the case records, some of the appellees appear to have submitted materials concerning the sales volumes, etc. of their own building materials containing asbestos as evidence. In addition, according to the aforementioned process of creation of the MLIT database, some of the appellees appear to have provided information about their own building materials containing asbestos listed in the database at the time of creation of the database or in the process of subsequent renewals thereof. Furthermore, if the appellees argue that facts concerning their own building materials containing asbestos that are found by the Method of Proof contain an error, it is considered to not necessarily be difficult for them as building material manufacturers to point out that error by submitting various materials that are available to them even if they have not stored their own materials.

Therefore, if the appellees do not conduct activities for proof to prevent the finding by the Method of Proof, it should be considered possible to find by inference the Fact of Arrival at Construction Sites also in light of that fact. Consequently, the court of prior instance should be considered to be extremely unreasonable in that it immediately determined that it is impossible to take into account the fact that the appellees do not conduct the aforementioned activities for proof in relation to the proof of the Fact of Arrival at Construction Sites, only on the grounds that it cannot be categorically considered unnatural that the appellees have not stored materials concerning their own building materials containing asbestos for the period from1965 to 1974 and the period from 1975 to 1984.

5. For the reasons described above, the Method of Proof is reasonably rational, and it should be said that the Fact of Arrival at Construction Sites can be proven by that method with regard to specific building materials containing asbestos.

Therefore, the determination of the court of prior instance that uniformly denied that the Fact of Arrival at a Construction Site can be proven by the Method of Proof contains illegality of violation of the rules of thumb or the rules of evidence collection. This illegality has clearly influenced the judgment. The counsel's arguments are well-grounded, and the judgment in prior instance should inevitably be quashed.

6. For the reasons described above, of the judgment in prior instance, the part concerning the claims of the appellants stated in row 1 of each of the lists from List 1 to List 19 attached to this judgment against the appellees stated in row 2 of each of the same lists is quashed, and this case is remanded to the court of prior instance to be further examined in relation to the same part.

Accordingly, the Court unanimously decides as set forth in the main text of the judgment.

(Attachments omitted)

Presiding Judge

Justice MIYAMA Takuya

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice YAMAGUCHI Atsushi

(This translation is provisional and subject to revision.)