2021.05.17

2018 (Ju) 1447

Minshu Vol. 75, No. 4

Judgment concerning a case in which the court determined that the Minister of Labour's failure to exercise the regulatory authority under the Industrial Safety and Health Act for the purpose of preventing the development of diseases associated with asbestos at construction sites is illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act in relation to workers who engaged in indoor construction work and were exposed to asbestos particulates

Cases seeking compensation for loss or damage

Judgment of the First Petty Bench, partially quashed and remanded, partially quashed and decided by the Supreme Court, partially dismissed

Tokyo High Court, Judgment of October 27, 2017

1. If persons engaging in construction work (excluding asbestos spraying work) inside a construction site that can be evaluated as an indoor workspace because it has a roof and more than half of its periphery is surrounded by the exterior wall are affected with diseases associated with asbestos, such as lung asbestosis, lung cancer, and mesothelioma, due to exposure to asbestos particulates, under the circumstances held in the judgment, such as those mentioned in (1) to (4) below, the Minister of Labour's failure to conduct the following acts on and after October 1, 1975, the day on which the Regulation on Prevention of Hazards Due to Specified Chemical Substances after the amendment in 1975 to strengthen regulations on asbestos came into effect with some exceptions, is illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act in relation to the aforementioned workers who engaged in construction work and were exposed to asbestos particulates: the act of providing guidance and supervision to ensure the indication of the fact that the inhalation of particulates arising from building materials containing asbestos poses a risk of causing serious diseases associated with asbestos, such as lung asbestosis, lung cancer, and mesothelioma, and the fact that it is necessary to wear an appropriate dust respirator without fail when conducting work that would cause the dispersion of asbestos particulates, such as cutting of building materials containing asbestos, or conducting work around a place where such work is conducted, in the forms of labels on building materials containing asbestos and displays at construction sites where building materials containing asbestos were handled, by issuing a circular notice or by any other means through the exercise of the regulatory authority under the Industrial Safety and Health Act; and the act of obliging an employer to have workers use respiratory protective equipment when having them engage in the aforementioned work inside a construction site that can be evaluated as an indoor workspace as mentioned above by exercising the authority to enact a Ministerial Order under the same Act.

(1) As of 1975, the working environment at construction sites involved a high risk of exposure to asbestos particulates. Measures against asbestos particulates taken by the State were insufficient, and persons engaging in construction work were facing a broad and serious risk of being affected with diseases associated with asbestos.

(2) Medical knowledge about lung asbestosis had been established by 1958, and the relationship between exposure to asbestos particulates and the development of lung cancer and mesothelioma as well as the fact that lung cancer and mesothelioma are delayed diseases with a long incubation period had already become clear by 1972.

(3) With revelation of the carcinogenicity of asbestos, the State had recognized the necessity of strengthening regulations on asbestos particulates by 1973, and it had recognized the necessity of preventing persons engaging in construction work who handle building materials containing asbestos from being affected with diseases associated with asbestos by 1975.

(4) By around 1973, the State could recognize the possibility that persons engaging in construction work would be exposed to asbestos particulates exceeding the inhibitory concentration indicated by a circular notice of that time, and it could have grasped the fact that persons engaging in construction work working inside construction sites that can be evaluated as indoor workspaces as mentioned above, other than those engaging in asbestos spraying work, were also facing a broad and serious risk of being affected with diseases associated with asbestos if it had conducted investigations, such as the measurement of the concentration of asbestos particulates at construction sites.

2. If persons engaging in construction work (excluding asbestos spraying work) inside a construction site that can be evaluated as an indoor workspace because it has a roof and more than half of its periphery is surrounded by an exterior wall are affected with diseases associated with asbestos, such as lung asbestosis, lung cancer, and mesothelioma, due to exposure to asbestos particulates, under the circumstances held in the judgment, such as those mentioned in (1) to (4) below, the Minister of Labour's failure to conduct the following act on and after October 1, 1975, the day on which the Regulation on Prevention of Hazards Due to Specified Chemical Substances after the amendment in 1975 to strengthen regulations on asbestos came into effect with some exceptions, is also illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act in relation to those who engaged in the aforementioned construction work and were exposed to asbestos particulates but do not fall under the workers as defined in Article 2, item (ii) of the Industrial Safety and Health Act: the act of providing guidance and supervision to ensure the indication of the fact that the inhalation of particulates arising from building materials containing asbestos poses a risk of causing serious diseases associated with asbestos, such as lung asbestosis, lung cancer, and mesothelioma, and the fact that it is necessary to wear an appropriate dust respirator without fail when conducting work that would cause the dispersion of asbestos particulates, such as cutting of building materials containing asbestos, or conducting work around a place where such work is conducted, in the forms of labels on building materials containing asbestos and displays at construction sites where building materials containing asbestos were handled, by issuing a circular notice or by any other means through the exercise of the regulatory authority under the same Act.

(1) As of 1975, the working environment at construction sites involved a high risk of exposure to asbestos particulates. Measures against asbestos particulates taken by the State were insufficient, and persons engaging in construction work faced a broad and serious risk of being affected with diseases associated with asbestos.

(2) Medical knowledge about lung asbestosis had been established by 1958, and the relationship between exposure to asbestos particulates and the development of lung cancer and mesothelioma as well as the fact that lung cancer and mesothelioma are delayed diseases with a long incubation period had already become clear by 1972.

(3) With the carcinogenicity of asbestos having become clear, the State had recognized the necessity of strengthening regulations on asbestos particulates by 1973, and it had recognized the necessity of preventing persons engaging in construction work who handle building materials containing asbestos from being affected with diseases associated with asbestos by 1975.

(4) By around 1973, the State could recognize the possibility that persons engaging in construction work would be exposed to asbestos particulates exceeding the inhibitory concentration indicated by a circular notice of that time, and it could have grasped the fact that persons engaging in construction work working inside construction sites that can be evaluated as indoor workspaces as mentioned above, other than those engaging in asbestos spraying work, were also facing a broad and serious risk of being affected with diseases associated with asbestos if it had conducted investigations, such as the measurement of the concentration of asbestos particulates at construction sites.

3. The non-existence of a person who has committed an act that can independently cause loss or damage to a victim other than the multiple tortfeasors specified by the victim is a requirement for the application of the second sentence of Article 719, paragraph (1) of the Civil Code.

4. If, when manufacturing and selling building materials containing asbestos, many building material manufacturers, including Y1, Y2, and Y3, were obliged to affix a label to the building materials stating that the building materials contain asbestos and that the inhalation of particulates arising from the building materials poses a risk of causing serious diseases associated with asbestos, such as lung asbestosis, lung cancer, and mesothelioma, but failed to perform that obligation, causing carpenters to cumulatively become exposed to asbestos particulates as a result of having handled building materials containing asbestos manufactured and sold by multiple building material manufacturers at construction sites and become affected with mesothelioma, under the circumstances held in the judgment, such as those mentioned in (1) to (4) below, Y1, Y2, and Y3 are jointly and severally liable to compensate loss or damage with respect to one-third of the loss or damage incurred by each of the aforementioned carpenters through application by analogy of the second sentence of Article 719, paragraph (1) of the Civil Code.

(1) The aforementioned carpenters directly handled the following types of building materials containing asbestos at construction sites: flexible slate boards containing asbestos; plane slate boards containing asbestos; Type I calcium silicate boards containing asbestos.

(2) Out of the aforementioned types of building materials containing asbestos, those manufactured and sold by Y1, Y2, and Y3 arrived a significant number of times at construction sites where the aforementioned carpenters were working and were used there.

(3) The amount of exposure to asbestos particulates suffered by the aforementioned carpenters as a result of having directly handled the aforementioned types of building materials containing asbestos was around one-third of the entire amount of exposure to asbestos particulates suffered by each of them.

(4) The extent to which Y1, Y2, and Y3 individually affected the aforementioned carpenters' development of mesothelioma is not clear.

5. If, when manufacturing and selling building materials containing asbestos, many building material manufacturers, including Y1, Y2, and Y3, were obliged to affix a label to their building materials stating that the building materials contain asbestos and that the inhalation of particulates arising from the building materials poses a risk of causing serious diseases associated with asbestos, such as lung asbestosis, lung cancer, and mesothelioma, but failed to perform that obligation and this caused carpenters to cumulatively become exposed to asbestos particulates as a result of having handled building materials containing asbestos manufactured and sold by multiple building material manufacturers at construction sites and thus become affected with lung asbestosis, lung cancer or diffuse pleural thickening, under the circumstances held in the judgment, such as those mentioned in (1) to (4) below, Y1, Y2, and Y3 are jointly and severally liable to compensate loss or damage with respect to one-third of the loss or damage incurred by each of the aforementioned carpenters through application by analogy of the second sentence of Article 719, paragraph (1) of the Civil Code.

(1) The aforementioned carpenters directly handled the following types of building materials containing asbestos at construction sites: flexible slate boards containing asbestos; plane slate boards containing asbestos; Type I calcium silicate boards containing asbestos.

(2) Out of the aforementioned types of building materials containing asbestos, those manufactured and sold by Y1, Y2, and Y3 arrived a significant number of times at construction sites where the aforementioned carpenters were working and were used there.

(3) The amount of exposure to asbestos particulates suffered by the aforementioned carpenters as a result of having directly handled the aforementioned types of building materials containing asbestos was around one-third of the entire amount of exposure to asbestos particulates suffered by each of them.

(4) The extent to which Y1, Y2, and Y3 individually affected the aforementioned carpenters' development of lung asbestosis, lung cancer or diffuse pleural thickening is not clear.

(Concerning 1 and 2) Article 1, paragraph (1) of the State Redress Act and Articles 22, 23, and 27 and Article 57, paragraph (1) of the Industrial Safety and Health Act

(Concerning 3 to 5) Second sentence of Article 719, paragraph (1) of the Civil Code



State Redress Act

Article 1　(1)　When a public officer who exercises the public authority of the State or of a public entity has, in the course of his/her duties, unlawfully inflicted damage on another person intentionally or negligently, the State or public entity shall assume the responsibility to compensate therefor.



Industrial Safety and Health Act

Article 22　An employer must take the necessary measures to prevent the following health impairments:

(i)　health impairments due to things such as raw materials, gases, vapors, dusts, insufficient oxygen in the air, and pathogens;

(ii)　health impairments due to things such as radiation, high temperatures, low temperatures, ultrasonic waves, noises, vibration, abnormal atmospheric pressures;

(iii)　health impairments due to operations such as gauge monitoring, precision work, etc.;

(iv)　health impairments due to exhaust fumes, waste fluids, or solid wastes.

Article 23　As regards the constructions and other workspaces where workers are engaged in work, an empolyer must take the necessary measures for the maintenance of passages, floor and stair areas and the necessary measures for ventilation, lighting, illumination, heating, damp-proofing, rest, evacuation and sanitation, or other measures required to maintain the health, moral, order and lives of workers.

Article 27　(1)　The measures required to be taken by the employer pursuant to the provisions of Articles 20 through 25 and of paragraph (1) of Article 25-2, and the measures required to be observed by the workers pursuant to the provisions of the preceding Article are prescribed by Order of the Ministry of Health, Labour and Welfare.

(2)　Consideration must be given, in preparing the Order of the Ministry of Health, Labour and Welfare referred to in the preceding paragraph, so as not to run counter to the purport of laws and regulations concerning the prevention of environmental pollution (meaning environmental pollution defined in paragraph (3) of Article 2 of the Basic Act for Environmental Pollution Control (Act No. 91 of 1993)) and other disasters involving the general public that are closely related to industrial injuries.

Article 57　(1)　A person that transfers or provides explosives, pyrophorus, flammables, or any other substance that could put a worker in danger and are specified by Cabinet Order; that transfers or provides benzene, preparations containing benzene, or other substances that could cause a worker's health to be impaired and are specified by Cabinet Order; or the substances referred to in paragraph (1) of the preceding Article, with putting them into a container or a package, must label the container or the package (or label the container, if the substances are put o a container and also packaged before being transferred or provided) with the following things, pursuant to Order of the Ministry of Health, Labour and Welfare; provided, however, that this does not apply to containers or packages that are intended primarily for use by general consumers:

(i)　the following particulars:

(a)　the name of the substance;

(b)　its effects on the human body;

(c)　precautions concerning storage or handling;

(d)　particulars specified by Order of the Ministry of Health, Labour and Welfare, beyond what is set forth in (a) through (c).

(ii)　the markings meant to draw the attention of workers handling those substances that are specified by the Minister of Health, Labour and Welfare.



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.

1. Of the judgment in prior instance, the following parts are quashed, and this case is remanded to the Tokyo High Court in relation to the same parts.

(1) Part concerning the claims of the plaintiffs stated in List 1 attached to this judgment against Defendant State

(2) Part against the plaintiffs stated in List 2 attached to this judgment concerning the claims of the aforementioned plaintiffs against Defendant State

(3) Part concerning the claims of the plaintiffs stated in List 3 attached to this judgment against Defendant A & A Material, Defendant Nichias, Defendant MMK, Defendant Daiken Corporation, and Defendant Nozawa

(4) Part concerning the claims of the plaintiffs stated in List 4 attached to this judgment against Defendant Taiheiyo Cement

(5) Part concerning the claims of the plaintiffs stated in Lists 5 and 6 attached to this judgment against Defendant Nozawa

2. Of the judgment in prior instance, the part concerning the claims of the plaintiffs stated in the "Name of the appellant of final appeal" column in List 7 attached to this judgment (including the litigation successors of the persons stated in the same column) against Defendant A & A Material, Defendant Nichias, and Defendant MMK is modified as follows.

The judgment in first instance is modified as follows.

(1) Defendant A & A Material, Defendant Nichias, and Defendant MMK jointly and severally pay to each of the persons stated in the "Name of the appellant of final appeal" column in List 7 attached to this judgment the amount stated in the "Upheld amounts" column in the same list, which corresponds to each of them, and the amount accrued thereon at the rate of 5% per annum for the period from the date stated in the "First day of calculation of delay damages" column in the same list to the date of completion of payment.

(2) All the other claims of the persons stated in the "Name of the appellant of final appeal" column in List 7 attached to this judgment against Defendant A & A Material, Defendant Nichias, and Defendant MMK are dismissed.

3. The final appeals filed by Defendant State, Defendant A & A Material, Defendant Nichias, and Defendant MMK are dismissed.

4. The total court costs for the litigation between the plaintiffs stated in the "Name of the appellant of final appeal" column in List 7 attached to this judgment (including the litigation successors of the persons stated in the same column) and Defendant A & A Material, Defendant Nichias, and Defendant MMK shall been borne by each of the persons stated in the same column (if litigation pertaining to a person stated in the "Rate of cost bearing" column in the same list has been succeeded, the successor of that litigation) at the rate stated in the "Rate of cost bearing" column in the same list, which corresponds to each of the aforementioned persons, and the rest shall be borne by Defendant A & A Material, Defendant Nichias, and Defendant MMK. The costs of the final appeal pertaining to paragraph 3 shall be borne by Defendant State, Defendant A & A Material, Defendant Nichias, and Defendant MMK.

No. 1 Outline of the case

1. The plaintiffs are persons who argue that they were affected with diseases associated with asbestos, such as lung asbestosis, lung cancer, or mesothelioma, as a result of having been exposed to asbestos particulates when engaging in construction work mainly in Kanagawa Prefecture (70 persons, excluding five persons, Appellant Nos. 20, 49, 56, 65, and 75, from 75 persons stated in the "Name of disaster victim" column in Attachment 2 "List in the main text" attached to the judgment in prior instance (however, if no name is stated in the "Name of disaster victim" column, the person stated in the "Name of the appellant" column); hereinafter referred to as the "Disaster Victims") or their successors. In this case, the plaintiffs argue that Defendant State's failure to exercise the regulatory authority under the Industrial Safety and Health Act (hereinafter referred to as the "Safety and Health Act") for the purpose of preventing persons engaging in construction work from being exposed to asbestos particulates arising from building materials containing asbestos is illegal, and demand Defendant State's compensation for loss or damage under Article 1, paragraph (1) of the State Redress Act. The plaintiffs also argue that the Disaster Victims were affected with the aforementioned diseases because Defendant A & A Material, Defendant Nichias, Defendant MMK, Defendant Daiken Corporation, Defendant Taiheiyo Cement, and Defendant Nozawa (hereinafter the aforementioned six defendant companies are collectively referred to as the "defendant building material manufacturers") manufactured and sold building materials containing asbestos without affixing a label to them stating that exposure to particulates arising from building materials containing asbestos poses a risk of becoming affected with diseases associated with asbestos, and demand the defendant building material manufacturers compensate for loss or damage based on a tort.

2. The outline of facts and related laws and regulations determined by the court of prior instance is as follows.

(1) Outline of asbestos and building materials containing asbestos

"Asbestos" is a general term for the naturally produced fibrous silicate minerals of the serpentine group or amphibole group, and includes chrysotile, crocidolite, amosite, anthophyllite, tremolite, and actinolite. Asbestos has as its special features spinnability, tensile strength, heat resistance, etc. and has been widely used for building materials, etc.

The volume of asbestos imported annually in Japan rapidly increased during the period of rapid economic growth, and it exceeded 100,000 tons in 1961 and 200,000 tons in 1969, respectively, reached 352,110 tons in 1974, hovering over 200,000 tons thereafter, and was 320,393 tons in 1988. However, the import volume has continuously decreased since 1989, fell below 200,000 tons in 1994 and 100,000 tons in 2000, respectively, was 8,186 tons in 2004 and 110 tons in 2005, and has been zero since 2006. About 70% of asbestos imported in Japan was used at construction sites.

Building materials containing asbestos used in Japan included slate boards and calcium silicate boards used as interior materials for walls and ceilings, corrugated slate sheets used as exterior materials for exterior walls and eaves, decorative slates for house roofs used as roof materials, and vinyl floor tiles used as floor materials. In addition, spraying materials in which asbestos and cement or other binders were mixed were used as fireproof covering for steel frames that would become building frames in the construction work of steel-framed buildings. Other than the above, there were asbestos cement cylinders used as chimneys and water-supply or drainage pipes as well as lagging materials containing asbestos used to keep pipes in buildings warm.

(2) Dispersion of asbestos particulates in construction work

At construction sites, asbestos particulates were sometimes dispersed from building materials containing asbestos during the following work, etc.

In the construction work of wooden buildings, asbestos particulates were dispersed during the cutting of building materials containing asbestos, such as slate boards containing asbestos. In addition, when plasterers made mortar, they added asbestos or admixture containing asbestos to mortar and stirred it, thereby causing dispersion of asbestos particulates. Utility work also involved the risk that asbestos particulates might be dispersed when an electrical worker or plumber made a hole in a board containing asbestos.

In the construction work of steel-framed buildings, asbestos particulates were also sometimes dispersed in the same manner as the aforementioned case of wooden buildings. In addition, asbestos particulates from spraying material dispersed from a nozzle sometimes scattered during spraying work. Moreover, asbestos particulates were also sometimes dispersed during the scraping of sprayed asbestos, etc. for wiring or pipe laying.

Asbestos contained in building materials was also sometimes dispersed in the form of particulates in the extension, reconstruction or demolition work of a building.

In addition to these cases, asbestos particulates were sometimes dispersed in work, such as the installation of a lagging material containing asbestos on a pipe or machine, etc. in a factory, etc. or replacement, etc. thereof.

Persons engaging in construction work were sometimes directly exposed to asbestos particulates that were dispersed or scattered due to work they conducted, and they were also sometimes indirectly exposed to asbestos particulates that were dispersed or scattered due to work conducted by other persons engaging in construction work at the same construction sites in which they were working.

(3) Status of dissemination of electric power tools

In the case of processing a building material with an electric power tool, such as an electric circular saw or electric drill, more particulates are dispersed than in the case of processing it with a hand tool. According to the Yearbook of Machinery Statistics, the number of such electric tools sold annually in Japan increased up to 1,000,000 in 1968, 2,000,000 in 1973, 3,000,000 in 1977, 4,000,000 in 1979, 5,000,000 in 1980, 6,000,000 in 1983, and 7,000,000 in 1990, and has remained at the level of several million thereafter.

(1) Status of wearing of dust respirators

At construction sites around 1985, most workers, except for spraying workers and some chipping workers, did not wear a dust respirator, and the situation had been the same around 1975.

(5) Results of measurements of the concentrations of asbestos particulates

A. In 1971, KIMURA Kikuji at the Institute for Science of Labour published a paper titled "Asbestos particulates at workspaces" in a magazine, "Digest of Science of Labour," Vol. 26, No. 9. According to the same paper, the results of measurements of the concentrations of asbestos particulates pertaining to the cutting work of asbestos boards conducted at factories for the period from around 1965 to 1970 were as follows: 10.8 to 16.2 fibers per cubic centimeter (hereinafter the number of fibers in terms of the concentration of asbestos particulates refers to the number of asbestos fibers) in the absence of a dust prevention device and 7.4 to 10.0 fibers per cubic centimeter in the presence of a dust prevention device.

In addition, in 1976, KIMURA Kikuji gave a lecture titled "Consideration of the measurement method of asbestos particulates" at the 20th meeting of the Japan Council of Industrial Physicians in the 49th meeting of the Japan Society for Occupational Health. According to the same lecture, the results of measurements of the concentrations of asbestos particulates at workspaces conduced for the preceding two or three years were as follows: in the case where a large asbestos board was cut with an electric saw, 2.89 to 25.08 fibers per cubic centimeter when a dust absorber was running, and 147.03 to 391.50 fibers per cubic centimeter when a dust absorber was not running; in the case where a small asbestos board was cut with a hand saw in the absence of a dust absorber, 0.31 to 2.55 fibers per cubic centimeter or 0.11 to 0.38 fibers per cubic centimeter.

B. According to "Materials on asbestos" prepared by the Industrial Health Division, which was attached to a circular notice titled "Concerning the promotion of preventive measures against health impairments due to asbestos particulates" issued by the Director-General of the Labour Standards Bureau of the Ministry of Labour on May 22, 1976 (Director-General of the Labour Standards Bureau Circular Notice No. 408 of May 22, 1976), the results of measurements of the concentrations of particulates during the spraying work of spraying materials, whose asbestos content was 50%, in construction work (average of the concentrations of particulates measured at 15 sites) were 37.66 to 41.76 mg per cubic meter for dry spraying work, and 12.11 to 17.28 mg per cubic meter for wet spraying work (if these measurement results are converted while considering "2 mg per cubic meter" to be equal to "33 fibers per cubic centimeter" and the converted values are multiplied by the asbestos content rate, 50%, the calculated results are 310.7 to 344.5 fibers per cubic centimeter and 99.90 to 142.6 fibers per cubic centimeter, respectively).

C. In 1973, the Factory Inspectorate Division of the Department of Employment, Manpower Safety and Health Services of the United Kingdom published the results of measurements of the concentrations of asbestos particulates at construction sites. The measurement results were as follows: in asbestos spraying work, 5 to 10 fibers per cubic centimeter in the case of using a recommended moistening device, and 100 fibers per cubic centimeter or more in the case of not using the same device; in demolition work (work to remove lagging materials), 20 fibers per cubic centimeter or more in the case of conducting such work in the dry condition; in work to cut an asbestos cement sheet or pipe with a circular saw, 10 to 20 fibers per cubic centimeter in the case of not using an effective local exhaust ventilation system; and in work to cut an asbestos heat insulation board with a circular saw, 20 fibers per cubic centimeter or more in the case of not using an effective local exhaust ventilation system.

(6) Outline of diseases associated with asbestos

Diseases associated with asbestos include lung asbestosis, lung cancer, mesothelioma, and diffuse pleural thickening. Lung asbestosis is a disease developed due to the inhalation of a large amount of asbestos particulates and is a type of pneumoconiosis. "Lung cancer" is a general term for malignant tumors that develop in the lung. A linear dose-response relationship (the incidence rate of lung cancer becomes higher if the cumulative amount of exposure increases) is recognized between the amount of exposure to asbestos particulates and the incidence rate of lung cancer. Mesothelioma is a tumor that develops from mesothelial cells covering the surface of the body cavity in the chest cavity or abdominal cavity, etc., and all mesotheliomas are malignant. Most mesotheliomas are caused by exposure to asbestos particulates, and it has been ascertained that mesothelioma may be developed through exposure to a lower level of asbestos particulates than for lung cancer. There is no established therapy for mesothelioma, and at the present time, mesothelioma prognosis is allegedly extremely poor. For all of the diseases namely lung asbestosis, lung cancer, and mesothelioma, the incubation period (period from the start of exposure to asbestos particulates to the development of a disease) is long. In addition, for lung cancer and mesothelioma, it is also considered that there is no threshold of asbestos exposure, under which cancer does not develop. Diffuse pleural thickening is a lesion by which the pleura grows in thickness and the lung becomes less elastic, thereby causing the deterioration of respiratory function.

(7) Status of accumulation of medical knowledge about diseases associated with asbestos

A. As industrial health test and research, the Ministry of Labour entrusted research concerning pneumoconiosis such as lung asbestosis to experts for the period from fiscal 1956 to fiscal 1959. In fiscal 1956 and 1957, research concerning diagnostic criteria for lung asbestosis was conducted, and thereby the actual conditions and clinical picture of affection with lung asbestosis and a cause-and-effect relationship between affection with lung asbestosis and exposure to asbestos particulates, etc. were made clear. It was reported that the research reached the stage of setting diagnostic criteria. Medical knowledge about lung asbestosis had thus been established by around March 1958, when this report on the fiscal 1957 research was published.

B. In 1964, Selikoff, et al. published a paper titled "Asbestos Exposure and Neoplasia" in a medical journal in the United States. In the same paper, they reported the following facts: although the asbestos exposure of workers engaging in heat insulation work in the construction industry was at relatively low levels and intermittent, as a result of conducting the follow-up research for the period until 1962 targeting 632 workers who worked in this industry before 1943, 45 died of lung or pleural cancer, of which three died of pleural mesothelioma; in addition, one of said workers died of peritoneal mesothelioma, and four of the 255 deceased workers died of mesothelioma; this rate was very high as the incidence rate of such a rare tumor.

C. On January 5, 1971, the Director-General of the Labour Standards Bureau of the Ministry of Labour issued a circular notice titled "Concerning the improvement of the environment of workplaces where asbestos is handled" (Director-General of the Labour Standards Bureau Circular Notice No. 1 of January 5, 1971). In that circular notice, it was pointed out that "it has recently been ascertained that the inhalation of a large amount of asbestos particulates causes the development of lung asbestosis and also sometimes causes the development of lung cancer, and the idea that special asbestos causes the development of a malignant tumor called mesothelioma in the pleura has arisen."

D. In 1971, SERA Yoshizumi, the Director of National Sanatorium Kinki Central Hospital, published a paper titled "Asbestos-related work and lung diseases" in a magazine, "Digest of Science of Labour," Vol. 26, No. 9. The same paper states as follows: there is currently no objection to the existence of a cause-and-effect relationship between asbestos and the development of lung cancer, and it seems to be necessary to provide strong prevention guidance in relation to spraying work because six out of 39 workers who engaged in asbestos spraying work were found to have been affected with lung asbestosis.

E. In 1971, MATSUSHITA Hidetsuru and KAWAI Kiyoyuki of the National Institute of Industrial Health of the Ministry of Labour published a paper titled "Carcinogenicity of asbestos." According to the same paper, the relationship between asbestos exposure and mesothelioma came to attract strong interest since the report of Wagner, etc. in 1960, and following this report, the results of epidemiological research on pleural and peritoneal mesothelioma were published one after another in the United Kingdom, South Africa, the United States, Canada, Italy, Germany, and other countries. The paper states that according to those research results, exposure to a relatively low level of asbestos also poses a sufficient risk of causing mesothelioma after a long period of time, and that it seems to be indisputable from the perspectives of both epidemiology and experimental oncology that asbestos is carcinogenic.

F. In 1972, Selikoff, et al. gave a presentation titled "Cancer risk of insulation workers in the construction industry in the United States and Canada." In the same presentation, they stated as follows: regarding 17,800 insulation workers in the United States and Canada, the number of those who died of lung cancer or pleural mesothelioma for the period from 1967 to 1971 was analyzed based on the number of years from the start of asbestos exposure; the number of those who died of lung cancer significantly increases in 15 to 19 years after the start of asbestos exposure, and the number of those who died of lung cancer is the largest in 30 to 39 years after the start of exposure; and it is difficult to evaluate the effect of asbestos exposure unless conducting observation at least for 40 years after the start of exposure. The aforementioned presentation was also introduced in a report of research on the biological effect of asbestos, which was conducted using fiscal 1972 Environment Agency's environmental pollution research consignment expenses.

G. The International Labour Organization (ILO) pointed to asbestos as a substance involving a risk of causing occupational cancer at the "Meeting of Experts on Control and Prevention of Occupational Cancer," which it held in 1972.

The International Agency for Research on Cancer (IARC), which is an affiliated organization of the World Health Organization (WHO), held discussions on the biological effect of asbestos in October 1972. The report of the discussion results points out that all of the major types of asbestos available in the market can cause the development of lung cancer, and evidence has been obtained to show that all types of asbestos available in the market, except for anthophyllite, can cause the development of mesothelioma.

H. The Director-General of the Labour Standards Bureau of the Ministry of Labour issued a circular notice titled "Concerning the measurement of the concentrations of hazardous substances (asbestos and coal tar) covered by the Regulation on Prevention of Hazards Due to Specified Chemical Substances in the air in the working environment" (Director-General of the Labour Standards Bureau Circular Notice No. 407 of July 11, 1973; hereinafter referred to as the "1973 Circular Notice") on July 11, 1973. As a reason for its issuance, the 1973 Circular Notice cited the fact that measures to restrain the air concentrations of asbestos particulates had recently been strengthened in other countries' regulations because it was made clear that asbestos causes the development of lung cancer, mesothelioma, etc.

I. In 1973, the IARC published the second volume of a collection of monographs publicizing the results of deliberations on the carcinogenic risk of chemical substances to the human body. According to it, the following is pointed out: regarding the carcinogenicity of asbestos, the excess risk of lung cancer is ordinarily the result of strong exposure in the past, and the risk of lung cancer seems to be associated with lung asbestosis; in industries in which asbestos is manufactured and used, mesothelioma is caused by exposure to crocidolite and is less frequently caused by amosite or chrysotile; in addition, the period from the first exposure to the emergence of a tumor is long, and it is ordinarily over 30 years.

J. In 1976, the Ministry of Labour established the "Expert Conference on Health Impairments Due to Asbestos" in order to examine the criteria for finding industrial injuries for lung cancer and mesothelioma caused by exposure to asbestos particulates. The same conference broadly examined domestic and foreign documents concerning the actual conditions of asbestos exposure at industrial sites and the clinical practice, pathology, epidemiology, environment management, etc. of diseases associated with asbestos and compiled a report in September 1978. The same report states that there is no linear relationship between the degree of progress of lung asbestosis and the rate of development of lung cancer as a complication, and that some workers who were exposed to asbestos and showed a mild degree of lung asbestosis or no evidence of lung asbestosis are also recognized as having developed lung cancer. In addition, the report also states that the extra risk of causing lung cancer tends to become larger if the amount of asbestos exposure becomes larger, and that regarding specific cases, lung cancer is frequently found in workers who were exposed to asbestos over a period of around 10 years. Moreover, the same report points out that based on the current knowledge, it is appropriate to consider that all types of asbestos fibers involve a risk of causing lung cancer, and that regarding mesothelioma, there have been cases in which a low concentration level of asbestos particulates caused the development of mesothelioma, and mesothelioma may be developed by a smaller amount of exposure than that required for the development of lung cancer.

A report titled "Occupational exposure limits for asbestos" published by the WHO in 1989 states that there is no substantial evidence showing the existence of the threshold of asbestos exposure under which cancer does not develop.

(8) Number of construction workers who developed pneumoconiosis and complication of pneumoconiosis

The number of construction workers who developed pneumoconiosis (prior to fiscal 1978) or the number of construction workers who developed pneumoconiosis or complication of pneumoconiosis (fiscal 1979 and thereafter) was 77 in fiscal 1970 but exceeded 100 in fiscal 1971, 200 in fiscal 1974, and 400 in fiscal 1976, respectively, and reached 516 in fiscal 1977. After that, the number had repeatedly increased and decreased until fiscal 2003, exceeding 700 in the fiscal year with the largest number and never falling below 200. As the construction industry includes tunnel construction work, it cannot be said that all of such workers developed lung asbestosis. However, it is presumed that the number of construction workers who developed lung asbestosis accounts for a significant percentage of the total number. In addition, since fiscal 2005, the year from which statistics for the number of persons who developed diseases associated with asbestos by industry are available, the number of construction workers who developed diseases associated with asbestos was 299 in fiscal 2005 and 1,105 in fiscal 2006, and had hovered at the level of below 600 or 700 for the period from fiscal 2007 to fiscal 2014.

(9) Results of provision of supervision and guidance to workplaces where asbestos was handled in 1971

According to the results of provision of supervision and guidance to workplaces where asbestos was handled for the period from January to March 1971 (the number of workplaces supervised was two in the mining industry, 12 in the construction industry, and 174 in the manufacturing industry; the number of workers handling asbestos was three in the mining industry, 134 in the construction industry, and 3,657 in the manufacturing industry), the rate of workers who indicated evidence of pneumoconiosis was 6.5% for all the industries, and by industry, it was 6.6% in the manufacturing industry, 3.5% in the construction industry, and 0% in the mining industry.

(10) Outline of related laws and regulations, etc.

A.(A) The Labor Standards Act promulgated in 1947 (came into effect on November 1, 1947, with some exceptions; hereinafter the Labor Standards Act prior to amendment by Act No. 57 of 1972 is referred to as the "Former Labor Standards Act") provided as follows: an employer must take necessary measures to prevent danger and hazard due to particulates, etc. (Article 42); an employer must take necessary measures to provide ventilation, etc. and other measures necessary to maintain the health and moral order of workers and to keep them alive with respect to buildings in which the employer has workers work and their associated buildings, (Article 43); a worker must observe matters necessary to prevent danger and hazard (Article 44); if an employer begins to employ a worker, the employer must provide the worker with necessary education for safety and health in relation to relevant work (Article 50). The criteria for measures to be taken by an employer pursuant to the provisions of Articles 42 and 43 and the matters to be observed by a worker pursuant to the provisions of Article 44 were left to be specified by an order (Article 45).

(B) On October 31, 1947, the Minister of Labour enacted the Regulation on Industrial Safety and Health (Order of the Ministry of Labour No.9 of 1947; hereinafter referred to as the "Former Safety and Health Regulation"; came into effect on November 1, 1947) under the provisions of the Former Labor Standards Act. The Former Safety and Health Regulation included provisions with the following content.

a. At a workspace that is hazardous to health, such as one where particulates, etc. are dispersed, an employer must endeavor to improve the relevant work or facility to eliminate the causes of such hazardous situation (Article 172).

b. At an indoor workspace where particulates, etc. are dispersed, an employer must conduct local suction and discharge and take other appropriate measures, such as ventilation by fresh air, in order to keep the concentrations of the particulates, etc. contained in the air in the workspace below hazardous levels (Article 173).

c. At an outdoor workspace or workspace in a pit where a great deal of particulates is scattered, an employer must sprinkle water and take other measures to prevent the occurrence of particulates. However, this does not apply to the case where such scattering is unavoidable in terms of the nature of work (Article 175).

d. An employer must prohibit entry into a place, etc. hazardous to health where particulates, etc. are dispersed by any persons other than those who need to enter that place, etc., and must display a notice to that effect (Article 179).

e. In relation to work, etc. conducted at a place hazardous to health where particulates, etc. are dispersed, an employer must prepare suitable personal protective equipment, such as protective clothes, eye protectors, and respiratory protective equipment, in order to have workers engaging in the work use them (Article 181).

f. An employer must prepare at least the same number of pieces of personal protective equipment prescribed in Article 181, etc. as the number of workers who work at the same time, and always maintain them in a workable and clean condition (Article 184).

g. A worker engaging in work prescribed in Article 181, etc. must use personal protective equipment during work (Article 185).

(C) On April 28, 1971, the Minister of Labour enacted the Regulation on Prevention of Hazards Due to Specified Chemical Substances (Order of the Ministry of Labour No. 11 of 1971; hereinafter referred to as the "Former Specified Chemical Substances Regulation"; came into effect on May 1, 1971, with some exceptions) under the provisions of the Former Labour Standards Act, with the aim of enforcing the Former Labour Standards Act. Under the Former Specified Chemical Substances Regulation, asbestos was classified into Group-2 substances (Article 2, item (ii) and Appended Table 2), and provisions with the following content were set with regard to work pertaining to Group-2 substances.

a. As regards an indoor workspace where particulates, etc. of a Group-2 substance are dispersed, an employer must install a local exhaust ventilation system at a relevant dispersion source. If an employer does not install any local exhaust ventilation system on the grounds of the extreme difficulty in installation thereof, the employer must take necessary measures to prevent hazards to workers, including installation of a general ventilation system (Article 4, paragraphs (1) and (2)).

b. An employer must prohibit entry into a workspace where a Group-2 substance is manufactured or handled by any persons other than those concerned, and display a notice to that effect at a readily visible location (Article 25, item (i)).

c. An employer must label the container or package that is used for transportation or storage of a Group-2 substance with the name of the substance and handling precautions at a readily visible location thereof (Article 26, paragraph (2)).

d. An employer must prepare respiratory protective equipment necessary to prevent hazards caused by the inhalation of particulates, etc. of a Group-2 substance at a workspace where the Group-2 substance is manufactured or handled (Article 32).

e. An employer must prepare at least the same number of pieces of personal protective equipment referred to in Article 32 as the number of workers who work at the same time, and always maintain them in a workable and clean condition (Article 34).

B.(A) On June 8, 1972, the Safety and Health Act was promulgated (came into effect on October 1, 1972, with some exceptions). Along with this, the provisions on safety and health in Article 42 and thereafter of the Former Labour Standards Act were amended, and it was provided that workers' safety and health are to be governed by the provisions of the Safety and Health Act. The Safety and Health Act provided as follows: the purpose of the Safety and Health Act is to ensure workers' safety and health in the workspace and to facilitate the creation of comfortable working environments ("work environments" after amendment by Act No. 55 of 1992), by advancing comprehensive and systematic measures related to industrial injury prevention, including taking measures to establish standards for hazard prevention, clarifying accountability structures, and promoting autonomous action with a view to preventing industrial injuries, in conjunction with the Labour Standards Act (Article 1); for work that makes it necessary to have in place controls for preventing industrial injuries and that is specified by Cabinet Order, an employer must appoint an operations supervisor and have that person direct employees engaging in the relevant work and undertake other matters specified by Ministerial Order (Article 14); an employer must take necessary measures to prevent health impairments due to particulates, etc. (Article 22); as regards built structures and other workspaces where workers are engaged in work, an employer must take necessary measures for ventilation, etc. and other measures required to maintain the health and moral order of workers and to keep them alive (Article 23); a worker must observe necessary rules in response to the measures taken by an employer under the provisions of Articles 22 and 23, etc. (Article 26); it is prohibited to manufacture, import, transfer, provide or use objects that cause significant impairments of workers' health such as yellow phosphorus matches, benzidine, preparations containing benzidine, which are specified by Cabinet Order (Article 55); a person who transfers or provides benzene, preparations containing benzene or any other objects that are likely to cause impairments of workers' health which are specified by Cabinet Order must label the container or package thereof with the name of the object and its effects on the human body and precautions concerning storage or handling, etc. pursuant to the provisions of Ministerial Order (Article 57); if an employer begins to employ a new worker or changes the content of a worker's work, the employer must educate that worker in safety or health in relation to the operations in which the worker is to be engaged, pursuant to the provisions of Ministerial Order (Article 59, paragraphs (1) and (2)). The measures to be taken by an employer pursuant to the provisions of Articles 22 and 23, etc. and the matters to be observed by a worker pursuant to the provisions of Article 26 were left to be specified by Ministerial Order (Article 27, paragraph (1)).

(B) The Cabinet enacted the Order for Enforcement of the Industrial Safety and Health Act (Cabinet Order No. 318 of 1972; hereinafter referred to as the "Safety and Health Order"; came into effect on October 1, 1972, with some exceptions) under the provisions of the Safety and Health Act, and the Safety and Health Order was promulgated on August 19, 1972.

(C) On September 30, 1972, the Minister of Labour enacted the Regulation on Industrial Safety and Health (Order of the Ministry of Labour No. 32 of 1972; hereinafter referred to as the "Safety and Health Regulation"; came into effect on October 1, 1972, with some exceptions) under the provisions of the Safety and Health Act and the Safety and Health Order, with the aim of enforcing the Safety and Health Act, and repealed the Former Safety and Health Regulation.

The Safety and Health Regulation included provisions with the following content.

a. At a hazardous workspace where particulates, etc. are dispersed, an employer must take necessary measures such as use of substitutes and improvement of working methods or machines, etc. to eliminate the causes of such hazardous situation (Article 576).

b. At an indoor workspace where particulates, etc. are dispersed, an employer must take necessary measures, such as installation of a local exhaust ventilation system or general ventilation system, in order to keep the concentrations of particulates, etc. contained in the air below hazardous levels (Article 577).

c. As regards a local exhaust ventilation system and other facilities that discharge exhaust gas containing a hazardous substance, an employer must install an exhaust gas disposal device by dust collection or any other effective method corresponding to the kind of the hazardous substance (Article 579).

d. At an outdoor workspace or workspace in a pit where a great deal of particulates are scattered, an employer must sprinkle water and take other necessary measures to prevent particulates from being scattered (Article 582).

e. An employer must prohibit entry into a hazardous place, etc. where particulates, etc. are dispersed by any persons other than those concerned, and must display a notice to that effect at a readily visible location (Article 585).

f. In work, etc. at a hazardous place where particulates, etc. are dispersed, an employer must prepare suitable personal protective equipment, such as protective clothes, eye protectors, and respiratory protective equipment, in order to have workers engaging in the work use them (Article 593).

g. An employer must prepare at least the same number of pieces of personal protective equipment prescribed in Article 593 as the number of workers who work at the same time, and always maintain them in a workable and clean condition (Article 596).

h. If a worker engaging in the work prescribed in Article 593 is ordered by the employer to use personal protective equipment necessary for the work, the worker must use the personal protective equipment (Article 597).

(D) On September 30, 1972, the Minister of Labour enacted the Regulation on Prevention of Hazards Due to Specified Chemical Substances (Order of the Ministry of Labour No. 39 of 1972; hereinafter referred to as the "Specified Chemical Substances Regulation"; came into effect on October 1, 1972, with some exceptions) under the provisions of the Safety and Health Act and the Safety and Health Order, with the aim of enforcing the Safety and Health Act, and repealed the Former Specified Chemical Substances Regulation. Under the Specified Chemical Substances Regulation, asbestos was also classified into Group-2 substances in the same manner as under the Former Specified Chemical Substances Regulation (Article 2, item (iv); Appended Table 3, item (iii)-2 of the Safety and Health Order). Provisions with the following content were set with regard to work pertaining to Group-2 substances, and conventional regulations were taken over with almost no change.

a. As regards an indoor workspace where particulates, etc. of a Group-2 substance are dispersed, an employer must install a local exhaust ventilation system at a relevant dispersion source. If an employer does not install any local exhaust ventilation system on the grounds of the extreme difficulty in installation thereof, the employer must take necessary measures to prevent health impairments to workers, including installation of a general ventilation system (Article 5, paragraphs (1) and (2)).

b. An employer must prohibit entry into a workspace where a Group-2 substance is manufactured or handled by any persons other than those concerned, and display a notice to that effect at a readily visible location (Article 24, item (i)).

c. An employer must label the container or package that is used for transportation or storage of a Group-2 substance with the name of the substance and handling precautions at a readily visible location thereof (Article 25, paragraph (2)).

d. An employer must prepare respiratory protective equipment necessary to prevent health impairments to workers due to the inhalation of particulates, etc. of a Group-2 substance at a workspace where the Group-2 substance is manufactured or handled (Article 43).

e. An employer must prepare at least the same number of pieces of personal protective equipment referred to in Article 43 as the number of workers who work at the same time, and always maintain them in a workable and clean condition (Article 45).

C.(A) The Cabinet partially amended the Safety and Health Order on January 14, 1975 (came into effect on April 1, 1975, with some exceptions), and the Minister of Labour partially amended the Safety and Health Regulation on March 22, 1975 (the amended provisions of Appended Table 2, etc. of the Safety and Health Regulation came into effect on April 1, 1975). As a result of the aforementioned amendments of the Safety and Health Order and the Safety and Health Regulation, asbestos and preparations and other objects containing asbestos (however, excluding those of which the asbestos content is 5% or less of the total weight; hereinafter asbestos and the preparations and other objects containing asbestos that are subject to the regulations under the Safety and Health Order, the Safety and Health Regulation or the Specified Chemical Substances Regulation are sometimes collectively referred to as "asbestos, etc.") became subject to the obligation of labeling under Article 57 of the Safety and Health Act, and it became necessary to label their container or package with their names and effects on the human body and handling precautions, etc. (Article 18, items (ii)-2 and (xxxix) of the Safety and Health Order after the aforementioned amendment and Article 30, Article 32, item (ii)-2, Article 33, and Appended Table 2, item (ii)-2 of the Safety and Health Regulation after the aforementioned amendment; however, a transitional measure to the effect that the provisions of Article 57 of the Safety and Health Act do not apply to those that existed on April 1, 1975, for the period until September 30, 1975, was established).

(B) The Director-General of the Labour Standards Bureau of the Ministry of Labour issued a circular notice titled "Concerning the specific method of description of a label under Article 57 of the Industrial Safety and Health Act" (Director-General of the Labour Standards Bureau Circular Notice No. 170 of March 27, 1975; hereinafter referred to as the "Labeling Method Circular Notice") on March 27, 1975, and thereby indicated the specific method of description of a label pertaining to asbestos, etc. under Article 57 of the Safety and Health Act as follows: "Precautions: Please observe the following precautions as the inhalation of a large amount of particulates is likely to cause health impairments. 1. Install a local exhaust ventilation system at an indoor workspace where this product is handled and particulates are dispersed thereby. 2. When handling this product, wear a dust respirator as needed."

(C) On September 30, 1975, the Minister of Labour partially amended the Specified Chemical Substances Regulation (came into effect on October 1, 1975, with some exceptions). Of the aforementioned amendment, the major content relating to asbestos, etc. is as follows.

a. In addition to asbestos, preparations and other objects containing asbestos (however, excluding those of which asbestos content is 5% or less of the total weight) were also classified into Group-2 substances and were made subject to the employer's obligation to prepare respiratory protective equipment (Appended Table 3, items (ii)-4 and (ii)-37 of the Safety and Health Order after the aforementioned amendment and Article 2, paragraph (1), item (ii) and paragraph (2) and Appended Table 1, item (iv) of the Specified Chemical Substances Regulation after the aforementioned amendment).

b. It was provided that at a workspace where a specially controlled substance, including asbestos, etc., is manufactured or handled, an employer must display the name and effects on the human body of the specially controlled substance, handling precautions, and matters concerning personal protective equipment to be used at a location readily visible to workers engaging in work (Article 38-3 of the Specified Chemical Substances Regulation after the aforementioned amendment; hereinafter these provisions are referred to as the "Provisions on the Obligation of Display").

c. It was provided that an employer must not have workers engage in work to spray asbestos, etc., in principle (Article 38-7, paragraph (1) of the Specified Chemical Substances Regulation after the aforementioned amendment).

d. It was provided as follows: when having a worker engage in any of work to cut, bore, polish or otherwise handle asbestos, etc., work to break, demolish or otherwise handle an object to which asbestos, etc. are applied, poured or attached, work to put powder asbestos, etc. in a container or take it out of a container, and work to mix powder asbestos, etc., an employer must make asbestos, etc. assume a wet condition, except for the cases where it is extremely difficult to make asbestos, etc. assume a wet condition, and must also prepare a container with a lid for the placement of chips, etc. of asbestos, etc. at a location where any of these works is conducted (Article 38-8, paragraphs (1) and (2) of the Specified Chemical Substances Regulation after the aforementioned amendment).

e. It was provided that work in which asbestos, etc. are handled (excluding work in which asbestos, etc. are handled for test and research) is a type of work that requires the appointment of an operations supervisor referred to in Article 14 of the Safety and Health Act (Article 6, item (xviii) and Appended Table 3, items (ii)-4 and (ii)-37 of the Safety and Health Order after the aforementioned amendment and Article 2, paragraph (2) and Appended Table 1, item (iv) of the Specified Chemical Substances Regulation after the aforementioned amendment).

(D) On October 1, 1975, the Director-General of the Labour Standards Bureau of the Ministry of Labour issued a circular notice titled "Concerning the enforcement of a Ministerial Order partially amending the Regulation on Prevention of Hazards Due to Specified Chemical Substances" (Director-General of the Labour Standards Bureau Circular Notice No. 573 of October 1, 1975; hereinafter referred to as "Circular Notice No. 573"). This circular notice stated that the amendment of the Specified Chemical Substances Regulation was intended to enhance the content of the Specified Chemical Substances Regulation in consideration of the status of development of occupational cancer and other occupational diseases, etc. that has recently been of an extremely major concern. The circular notice stated that provisions on "specially controlled substances" provide for substances that require special control with a focus on their hazardous nature of causing late-effect health impairments to the human body or being extremely difficult to cure, such as substances whose carcinogenicity to the human body has become clear as a result of epidemiological study and substances whose carcinogenicity was found as a result of animal experiments which were reported at academic conferences, etc. In addition, Circular Notice No. 573 stated that regarding the matters to be displayed under the Provisions on the Obligation of Display, it suffices to display the name and effects on the human body of a specially controlled substance and handling precautions in the same manner as described in the relevant part of the Labeling Method Circular Notice.

D.(A) On January 25, 1995, the Cabinet partially amended the Safety and Health Order (came into effect on April 1, 1995, with some exceptions), and specified amosite, crocidolite, and preparations and other objects containing these substances exceeding 1% of the total weight as hazardous substances, etc. whose manufacture, etc. is prohibited pursuant to Article 55 of the Safety and Health Act (Article 16, items (iv), (v), and (x) of the Safety and Health Order after the aforementioned amendment).

(B) On January 26, 1995, the Minister of Labour partially amended the Safety and Health Regulation and the Specified Chemical Substances Regulation (both of the amended regulations came into effect on April 1, 1995, with some exceptions). Thereby, the scope of preparations and other objects containing asbestos that are subject to the regulations under the Safety and Health Regulation and the Specified Chemical Substances Regulation was expanded from those of which asbestos content exceeds 5% of the total weight to those of which asbestos content exceeds 1% of the total weight (Appended Table 2, item (ii)-2 of the Safety and Health Regulation after the aforementioned amendment and Appended Table 1, item (iv) and Appended Table 5, item (i) of the Specified Chemical Substances Regulation after the aforementioned amendment). In addition, the Safety and Health Regulation after the aforementioned amendment imposed on employers the obligation to submit a notification of a plan concerning work to remove asbestos, etc. at a fireproof building, etc. where asbestos, etc. are sprayed in advance for conducting the work (Article 90, item (v)-2). The Specified Chemical Substances Regulation after the aforementioned amendment imposed on employers the obligation to have workers use respiratory protective equipment, working clothes, etc. when having them engage in any of work to cut, bore, polish or otherwise handle asbestos, etc., work to break, demolish or otherwise handle an object to which asbestos, etc. are applied, poured or attached, work to put powder asbestos, etc. in a container or take them out of a container, and work to mix powder asbestos, etc. (Article 38-9, paragraphs (1) and (2)), the obligation to investigate locations where asbestos, etc. are used and the status of use of asbestos, etc. based on design documents, etc. and record the results of the investigation when conducting work to demolish or otherwise handle a building (Article 38-10), and the obligation to isolate a location where work to remove asbestos, etc. sprayed to the iron frame, etc. of a building is conducted from locations where any other work is conducted when having workers engage in said removal work (Article 38-11).

E. On October 16, 2003, the Cabinet partially amended the Safety and Health Order (came into effect on October 1, 2004) and specified products containing asbestos, such as asbestos cement cylinders, extruded cement boards, decorative slates for house roofs, fiber-reinforced cement boards, and ceramic engineering sidings, of which the weight of asbestos contained exceeds 1% of the total weight of the relevant product, as hazardous substances whose manufacture, etc. is prohibited pursuant to Article 55 of the Safety and Health Act (Article 16, paragraph (1) and Appended Table 8-2 of the Safety and Health Order after the aforementioned amendment).

F. On August 2, 2006, the Cabinet partially amended the Safety and Health Order (came into effect on September 1, 2006) and specified asbestos and preparations and other objects containing asbestos exceeding 0.1% of the total weight thereof, as well as those that are exceptionally excluded in the amended Supplementary Provisions, as hazardous substances, etc. whose manufacture, etc. is prohibited pursuant to Article 55 of the Safety and Health Act (Article 16, paragraph (1) of the Safety and Health Order after the aforementioned amendment and Article 3 of the aforementioned amended Supplementary Provisions).

(11) Regulation on the concentrations of asbestos particulates, etc.

A. In 1965, the Japan Association of Industrial Health (its name was changed to the Japan Society for Occupational Health in 1972; hereinafter referred to as the "Japan Society for Occupational Health" throughout for the periods before and after this change of the name) recommended 2 mg per cubic meter (in terms of the number of asbestos fibers, 33 fibers per cubic centimeter) as the permissible concentration of asbestos particulates. The permissible concentration means the concentration of a hazardous substance in the air at or below which a worker suffers almost no hazardous effect on his/her health in the case of having been exposed to the hazardous substance for consecutive days. That value is the average working day concentration in the case where a worker who is not especially highly sensitive engages in moderate work for eight hours or less per day.

In 1974, the Japan Society for Occupational Health revised the values for the permissible concentrations of asbestos particulates indicated in the recommendation in 1965, and set the permissible air concentrations of chrysotile, amosite, tremolite, anthophyllite, and actinolite as two fibers (5 μm (micrometer) or longer) per cubic centimeter as the time weighted average and ten fibers (5 μm or longer) per cubic centimeter as the ceiling value (the average value for 15 minutes must never exceed this value at any time), and also required the permissible concentration of crocidolite to be far below these concentrations. As reasons for this revision, the Japan Society for Occupational Health cited the fact that risks of not only lung asbestosis but also lung and digestive organ cancer and mesothelioma have come to attract attention and that the current permissible concentrations in Japan are extremely high compared to those that have recently been set or revised in other countries.

In 1982, the Japan Society for Occupational Health recommended 0.2 fibers per cubic centimeter as the permissible concentration of crocidolite.

In 2001, the Japan Society for Occupational Health introduced a risk assessment approach and classified asbestos as a carcinogenic substance. Then, as evaluation values corresponding to the levels of the excess lifetime carcinogenic risk 10-3 and 10-4, it recommended 0.15 fibers per ml and 0.015 fibers per ml, respectively, in the case where an object contains only chrysotile, and 0.03 fibers per ml and 0.003 fibers per ml, respectively, in the case where an object contains asbestos fibers other than chrysotile.

B. On April 28, 1971, the Minister of Labour specified the regulatory value for the inhibitory concentration of asbestos as 2 mg per cubic meter as the performance requirement of a local exhaust ventilation system under the provisions of Article 6, paragraph (2) of the Former Specified Chemical Substances Regulation (Ministry of Labour Public Notice No. 27 of 1971).

On July 11, 1973, the Director-General of the Labour Standards Bureau of the Ministry of Labour issued the 1973 Circular Notice and thereby instructed the provision of guidance that the inhibitory concentration of asbestos particulates is to be five fibers (5μm or longer) per cubic centimeter at the moment.

On September 30, 1975, the Minister of Labour amended the public notice under the Specified Chemical Substances Regulation and specified the regulatory value for the inhibitory concentration of asbestos as five fibers (5μm or longer) per cubic centimeter (Ministry of Labour Public Notice No. 75 of 1975).

On May 22, 1976, the Director-General of the Labour Standards Bureau of the Ministry of Labour issued a circular notice titled "Concerning the promotion of preventive measures against health impairments due to asbestos particulates" (Director-General of the Labour Standards Bureau Circular Notice No. 408 of May 22, 1976) and thereby stated that relevant countries have recently been strengthening regulations on the concentrations of asbestos particulates in the return air and instructed the provision of guidance to use the concentration of particulates in the return air of two or less fibers per cubic centimeter (for crocidolite, 0.2 or less fibers per cubic centimeter) at the moment as a guide.

On February 13, 1984, the Director-General of the Labour Standards Bureau of the Ministry of Labour issued a circular notice titled "Concerning the promotion of working environment management based on working environment assessment" (Director-General of the Labour Standards Bureau Circular Notice No. 69 of February 13, 1984) and thereby set the control concentration of asbestos as 2 fibers per cubic centimeter. The control concentration is an index used in determining whether or not the management of the working environment in the subject area is good based on the results of measurement conducted in that area in order to assess the conditions of the working environment relating to hazardous substances.

As the management of the working environment based on the control concentration was legislated with the amendment of the Safety and Health Act by Act No. 37 of 1988, the Minister of Labour specified the control concentration of asbestos as two fibers (5 μm or longer) per cubic centimeter (for crocidolite, 0.2 fibers per cubic centimeter) (Ministry of Labour Public Notice No. 79 of 1988) on September 1, 1988.

On October 1, 2004, the Minister of Health, Labour and Welfare specified the control concentration of asbestos as 0.15 fibers (5μm or longer) per cubic centimeter (Ministry of Health, Labour and Welfare Public Notice No. 369 of 2004).

(12) Arrival of building materials at construction sites where the Disaster Victims, who are mostly carpenters, were working, etc.

A. Since April 1, 1975, many building material manufacturers, including Defendant A & A Material, Defendant Nichias, and Defendant MMK (hereinafter these three are collectively referred to as "Defendant A & A Material, etc."), were obliged to affix a label to building materials containing asbestos when manufacturing and selling such building materials to show the following facts: the building materials contain asbestos, and the inhalation of particulates arising from the building materials poses a risk of causing serious diseases associated with asbestos, such as lung asbestosis, lung cancer, and mesothelioma; it is necessary to wear an appropriate dust respirator to avoid that risk. However, they failed to perform that obligation.

B. Flexible slate boards containing asbestos, plane slate boards containing asbestos, and Type I calcium silicate boards containing asbestos (hereinafter these are collectively referred to as the "Three Types of Boards") are generally building materials that are often directly handled by carpenters, and the Disaster Victims who are mostly carpenters (hereinafter referred to as the "Affected Carpenters") also directly handled the Three Types of Boards. In addition, out of the Three Types of Boards, all of those that Defendant A & A Material, etc. were manufacturing and selling arrived a significant number of times at construction sites where the Affected Carpenters were working and were used there during the period from April 1975 to 1992.

C. The Affected Carpenters were affected with diseases associated with asbestos as a result of having been exposed to asbestos particulates at construction sites. Around half of the amount of exposure of the Affected Carpenters was caused by indirect exposure to asbestos particulates dispersed or scattered due to work conducted by persons other than themselves, and the remaining amount was caused by direct exposure to asbestos particulates dispersed or scattered due to the handling of building materials containing asbestos by themselves. In addition, around two-thirds of the amount of exposure caused by the direct handling of building materials containing asbestos by the Affected Carpenters was caused by the handling of the Three Types of Boards during the period from April 1975 to 1992. Therefore, the amount of exposure to asbestos particulates caused by the direct handling of the Three Types of Boards by the Affected Carpenters during the period from April 1975 to 1992 was around one-third of the total amount of exposure to asbestos particulates for each of them.

3. The court of prior instance determined as summarized below based on the aforementioned facts.

(1) Concerning the claims for the State's compensation for loss or damage against Defendant State

A. As of 1975, the working environment at construction sites involved a high risk of exposure to asbestos particulates. In addition, it can be said that persons engaging in construction work were facing a broad and serious risk of being affected with diseases associated with asbestos at the construction sites of the day, taking into account that lung cancer develops at a lower level of exposure than lung asbestosis, that mesothelioma can also develop due to a small amount of exposure, that all the diseases associated with asbestos are serious life-threatening diseases, and that the number of workers in the construction industry accounted for about 10% of the entire working population. Thinking back from the present, measures against asbestos particulates taken by Defendant States at that time were insufficient. However, at that time, Defendant State neither understood the actual conditions of asbestos particulates at construction sites nor recognized that exposure to asbestos particulates at construction sites was causing a broad and serious risk to persons engaging in construction work. On the premise of such state of recognition of Defendant State, Defendant State's determination is found to be reasonably rational in that Defendant State, in principle, prohibited asbestos spraying work, which was considered as the major dispersion source of asbestos particulates at construction sites, by amending the Specified Chemical Substances Regulation in 1975 and took measures that it could adopt until other arrangements could be made, such as further ensuring of workers' wearing of respiratory protective equipment through specified chemical substances operations supervisors' direction of work and supervision of the status of use of personal protective equipment, in addition to the imposition of the conventional obligation on employers to prepare respiratory protective equipment. Taking these into account, Defendant State's failure to exercise the regulatory authority under the Safety and Health Act prior to December 31, 1980, cannot be considered to be extremely unreasonable beyond permissible limits, and it thus cannot be considered to be illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act.

B. As mentioned in (A) to (C) below, since January 1, 1981, Defendant State's failure to exercise the regulatory authority under the Safety and Health Act is found illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act, and the situation involving the risk of exposure to asbestos particulates continued to exist at construction sites thereafter as well. Therefore, the aforementioned illegal condition continued up until March 31, 1995.

(A) Even around 1980, a broad and serious risk of being affected with diseases associated with asbestos due to exposure to asbestos particulates continued to exist at construction sites. In addition, regarding the concentrations of asbestos particulates in various kinds of construction work, domestic and overseas measurement results that exceeded the permissible concentration were made public, and construction work came to be broadly recognized as that falling under an occupational field involving risks of exposure to asbestos particulates. Therefore, Defendant State could have become aware that persons engaging in construction work were facing the risk of suffering broad and serious health damage due to exposure to asbestos particulates. On that basis, Defendant State should have obliged employers to have workers use respiratory protective equipment in the case of having them engage in work that would cause the dispersion of asbestos particulates (for the details thereof, see Article 38-9, paragraph (1) of the Specified Chemical Substances Regulation after the 1995 amendment), such as cutting of building materials containing asbestos, or work conducted around a place where such work is conducted, inside a construction site that can be evaluated as an indoor workspace because it has a roof and more than half of its periphery is surrounded by the exterior wall (hereinafter referred to as an "indoor construction site"), under Article 27 of the Safety and Health Act through the amendment of the Specified Chemical Substances Regulation or by other means by January 1, 1981, at the latest. Defendant State's failure to do so is extremely unreasonable.

(B) In labels concerning objects that are likely to cause impairments of workers' health as prescribed in Article 57 of the Safety and Health Act, one of the matters to be indicated in a label as prescribed in the same Article, "effects on the human body," should be indicated by specifying symptoms and impairments as specifically as possible so that necessary treatment and therapy are promptly ascertained, and it is insufficient to abstractly indicate the likelihood of causing health impairments therein. Moreover, regarding another one of the matters to be indicated in a label as prescribed in the same Article, "precautions concerning storage or handling," it is necessary to indicate precautions necessary to prevent occurrence of health impairments. However, according to the specific method of description on a label pertaining to asbestos, etc. indicated in the Labeling Method Circular Notice, the following matters are to be stated in a label as "precautions": "Please observe the following precautions as the inhalation of a large amount of particulates is likely to impair health"; "When handling this product, wear a dust respirator as needed." By such method, symptoms and impairments are not specified at all in terms of "effects on the human body," and there is almost no description of symptoms and impairments. In addition, such statements may cause a misunderstanding that the inhalation of particulates is not likely to cause health impairments unless the amount of inhalation is large, which does not conform to medical knowledge as of around 1980. As "precautions concerning storage or handling," the aforementioned statements are insufficient for labels on building materials containing asbestos that are used at construction sites where wearing of respiratory protective equipment is indispensable to prevent exposure to asbestos particulates. The same also applies to displays at construction sites where building materials containing asbestos are handled as prescribed in the Provisions on the Obligation of Display. Then, as of January 1, 1981, Defendant State should have issued a circular notice by exercising the regulatory authority under the Safety and Health Act and thereby provided guidance and supervision to ensure the indication of the fact that the inhalation of particulates arising from building materials containing asbestos poses a risk of causing serious diseases associated with asbestos, such as lung asbestosis, lung cancer, and mesothelioma, and the fact that it is necessary to wear an appropriate dust respirator without fail when conducting work that would cause the dispersion of asbestos particulates, such as cutting of building materials containing asbestos, or conducting work around a place where such work is conducted, in the form of labels on building materials containing asbestos and displays at construction sites where building materials containing asbestos are handled. Defendant State's failure to do so is extremely unreasonable.

(C) As of January 1, 1981, Defendant State should have issued a circular notice by exercising the regulatory authority under Article 59 of the Safety and Health Act and thereby provided guidance and supervision to ensure the inclusion of the following facts in the content of safety and health education: many building materials contain asbestos; the inhalation of asbestos particulates that are dispersed during work in which building materials containing asbestos are handled poses a risk of causing serious diseases associated with asbestos, such as lung asbestosis, lung cancer, and mesothelioma in the future; in particular, lung cancer and mesothelioma are likely to develop even if the amount of inhalation is not large; treatment methods for these diseases are limited, and patients with these diseases sometimes die of the aggravation of symptoms; in order to avoid such risk, when conducting the aforementioned work, it is necessary to wear a dust respirator that conforms to the specifications without fail. Defendant State's failure to do so is extremely unreasonable.

C. Defendant State amended the Safety and Health Order, the Safety and Health Regulation, and the Specified Chemical Substances Regulation in 1995 and put them into effect on April 1, 1995, with some exceptions. As a result of these amendments, [i] it was prohibited to manufacture or otherwise handle amosite and crocidolite and preparations and other objects in which the content of amosite and crocidolite exceeds 1% of the total weight, and [ii] the scope of preparations and other objects containing asbestos subject to the regulations under the Safety and Health Regulation and the Specified Chemical Substances Regulation was expanded from those of which asbestos content exceeds 5% of the total weight to those of which asbestos content exceeds 1% of the total weight. In addition, the obligation [iii] was imposed on employers to submit a notification of a plan in the case of conducting work to remove sprayed asbestos, etc., [iv] the obligation to have workers use respiratory protective equipment, working clothes, etc. when having them engage in such work as the cutting of asbestos, etc., [v] the obligation to conduct investigation on the status of use of asbestos, etc. in advance of demolition work, and [vi] the obligation to isolate a place of work where work to remove sprayed asbestos, etc. is conducted. It should be said that the illegal condition due to Defendant State's failure to exercise the regulatory authority under the Safety and Health Act, which had continued since January 1, 1981, was thereby eliminated, and therefore, on and after April 1, 1995, Defendant State's failure to exercise the regulatory authority cannot be considered to be illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act.

D. Persons protected by the regulatory authority under Articles 22, 57, and 59 of the Safety and Health Act are workers as defined in Article 2, item (ii) of the Safety and Health Act, and Defendant State does not have the legal obligation to exercise the aforementioned regulatory authority in the course of duties in relation to persons who are not recognized as relevant workers. Therefore, in relation to independent masters and sole proprietors, etc. who are not recognized as relevant workers, Defendant State's failure to exercise the aforementioned regulatory authority is not considered to be illegal, and Defendant State does not assume any responsibility based on its failure to exercise the regulatory authority.

(2) Concerning the claims for compensation for loss or damage based on a tort against the defendant building material manufacturers

A. The second sentence of Article 719, paragraph (1) of the Civil Code is considered to be provisions to the following effect: if all of multiple perpetrators who fulfill the requirements for a tort other than the existence of a cause-and-effect relationship committed an act that can independently cause the infringement of the rights or legally protected interests of another person but it cannot be ascertained which of these acts committed by them caused loss or damage, the burden of proof for a cause-and-effect relationship is shifted to the perpetrators' side, and the perpetrators are made jointly and severally liable to compensate loss or damage unless each of them proves that there is no cause-and-effect relationship between his/her own act and loss or damage. The reasons for having established such provisions that shift the burden of proof for a cause-and-effect relationship and presume a cause-and-effect relationship in the second sentence of the same paragraph are considered to be as follows: if there is a person who committed an act that causes a specific risk of infringing the rights or legally protected interests of a victim, a cause-and-effect relationship between that act and loss or damage can be presumed by rule of thumb based on that fact alone; however, if there is, by chance, another person who committed a harmful act that causes the same level of risk, these facts mutually preclude the presumption of a cause-and-effect relationship, and the proof of the existence of a cause-and-effect relationship conducted by the victim can become insufficient for both of these facts; therefore, it is necessary to relieve the victim; in addition, as perpetrators have actually caused a specific risk of infringing the rights or legally protected interests of the victim, acknowledging a presumption does not necessarily go against the liability principle. Therefore, for the application of the second sentence of the same paragraph, it is considered necessary to argue and prove that the act of each perpetrator independently causes a specific risk to the extent that a cause-and-effect relationship between the act and loss or damage caused thereby can be presumed by rule of thumb. Then, even if building materials manufactured and sold by the defendant building material manufacturers were shipped, the acts of the defendant building material manufacturers cannot be considered to have caused a specific risk of occurrence of loss or damage in relation to the Disaster Victims unless said building materials arrived at construction sites where the Disaster Victims were working.

The purport of the second sentence of Article 719, paragraph (1) of the Civil Code is as mentioned above, and it is not reasonable to consider that the non-existence of any person who can be a perpetrator other than multiple perpetrators specified by a victim serves as a requirement for the application of the second sentence of the same paragraph. This is because even if the existence of a third party who committed an act that involves the same level of risk as the acts of perpetrators specified by a victim becomes clear, it is not considered that the basis of the presumption of a cause-and-effect relationship is immediately collapsed thereby.

Incidentally, it is considered that mesothelioma can develop due to exposure to a small amount of asbestos particulates. Regarding the claims for compensation for loss or damage pertaining to the Affected Carpenters who were affected with mesothelioma, it should be considered clearly inequitable if, under circumstances where there can be many perpetrators who have been involved in a victim's exposure to asbestos particulates such as in this case, a person specified as a perpetrator cannot reverse the presumption referred to in the second sentence of Article 719, paragraph (1) of the Civil Code even if he/she proves that there are many other persons who have committed harmful acts and the amount of exposure to asbestos particulates caused by the harmful acts committed by these persons is larger than the amount of exposure to asbestos particulates caused by his/her own harmful act. Therefore, it is reasonable to determine the degree of collective contribution of the companies that manufactured and sold the Three Types of Boards in relation to the entire amount of exposure to asbestos particulates pertaining to the aforementioned Affected Carpenters and have Defendant A & A Material, etc. assume the joint and several liability through application of the second sentence of the same paragraph within the scope of the proportionate liability according to the degree of collective contribution.

Taking into account the fact that, for the Affected Carpenters who were affected with mesothelioma, the amount of exposure to asbestos particulates caused by the direct handling of the Three Types of Boards was around one-third of the entire amount of exposure to asbestos particulates of each of them, from the perspective of the equitable sharing of loss or damage, it is reasonable to consider that Defendant A & A Material, etc. are jointly and severally liable for one-third of the loss or damage of each of the aforementioned Affected Carpenters through application of the second sentence of Article 719, paragraph (1) of the Civil Code within the scope of one-third of the total responsibility, which is the degree of collective contribution of the companies that manufactured and sold the Three Types of Boards.

All the Affected Carpenters who were affected with mesothelioma had died, and it is reasonable to set the standard solatium for the case where the Affected Carpenters died of a disease associated with asbestos as 25,000,000 yen and one-third thereof is 8,333,333 yen. Therefore, regarding the claims for compensation for loss or damage pertaining to the aforementioned Affected Carpenters, Defendant A & A Material, etc. jointly and severally have the obligation to pay 9,166,666 yen, which is the sum of the solatium of 8,333,333 yen and the attorney's fee of 833,333 yen, through application of the second sentence of Article 719, paragraph (1) of the Civil Code.

B. If none of the acts of multiple persons specified as perpetrators can independently cause the infringement of the rights or legally protected interests of another person, there is no basis of the presumption of a cause-and-effect relationship with respect to the entire loss or damage and it is considered that there is no premise for the application by analogy of the second sentence of Article 719, paragraph (1) of the Civil Code unless all perpetrators are specified and the non-existence of other perpetrators is proven.

Regarding the claims for compensation for loss or damage of the Affected Carpenters who engaged in work that would cause exposure to asbestos particulates and were affected with lung asbestosis, lung cancer or diffuse pleural thickening (hereinafter referred to as "diseases associated with asbestos other than mesothelioma"), the Three Types of Boards manufactured and sold by Defendant A & A Material, etc. are recognized as having arrived at construction sites where the aforementioned Affected Carpenters were working; however, this act of Defendant A & A Material, etc. is not recognized as an act that independently caused the aforementioned Affected Carpenters to develop diseases associated with asbestos other than mesothelioma, and it is also obvious that there are other persons who can be perpetrators. Therefore, it cannot be said that Defendant A & A Material, etc. are liable to compensate loss or damage through the application by analogy of the second sentence of the same paragraph.

However, in the aforementioned case, it is reasonable to consider that Defendant A & A Material, etc. assume the divided liability at a rate according to the degree of each defendant's contribution to the occurrence of loss or damage under Article 709 of the Civil Code. Then, regarding the Affected Carpenters who were affected with diseases associated with asbestos other than mesothelioma, it is reasonable to consider the degrees of contribution of Defendant A & A Material, Defendant Nichias, and Defendant MMK to the aforementioned Affected Carpenters' development of diseases associated with asbestos to be 10%, 3%, and 3%, respectively, taking into account the fact that the amount of the aforementioned Affected Carpenters' exposure to asbestos particulates caused by the direct handling of the Three Types of Boards was around one-third of the entire amount of exposure to asbestos particulates of each of them and that the market shares of the Three Types of Boards of Defendant A & A Material, Defendant Nichias, and Defendant MMK were around 30%, around 10%, and around 10%, respectively. Therefore, regarding the claims for compensation for loss or damage pertaining to the aforementioned Affected Carpenters, each of Defendant A & A Material, etc. assumes the divided liability under the same Article, and the amount of compensation for loss or damage is to be the amount obtained by multiplying the standard solatium according to the disease, etc. of the aforementioned Affected Carpenters (in the case of lung asbestosis (supervision classification No. II; with complications), 13,000,000 yen; in the case of lung cancer or diffuse pleural thickening, 22,000,000 yen; in the case of death due to a disease associated with asbestos, 25,000,000 yen) by the degree of contribution of each defendant, subtracting 10% of the obtained amount for the Affected Carpenters who were affected with lung cancer and had a smoking history, and adding 10% of the obtained amount as attorney's fee. That is, as a result of calculation stated in the calculation document attached to this judgment, in relation to the aforementioned Affected Carpenters, Defendant A & A Material, etc. are liable to compensate loss or damage of the amount stated in the "Upheld amounts" column with respect to each defendant in Attachment 2 "List in the main text" attached to the judgment in prior instance.

C. In building construction work, workers are sometimes exposed to asbestos particulates when conducting work on building materials containing asbestos that have already been installed, such as when a person other than a person who attached a molded plate containing asbestos conducts work to make a hole in said molded plate for wiring or pipe laying after the molded plate was attached. The safety of persons engaging in construction work in doing such work should be ensured through an employer's performance of the obligation to pay attention to safety even when being triggered by the information on a warning label attached at the time of shipment. Therefore, it should be considered that persons who manufacture and sell building materials containing asbestos do not have the obligation to place a warning label in regards to persons who subsequently conduct work on building materials containing asbestos that have already been installed as mentioned above. Therefore, the claims of the plaintiffs stated in List 3 attached to this judgment against Defendant A & A Materials, etc., Defendant Daiken Corporation, and Defendant Nozawa, and the claims of the plaintiffs stated in List 5 attached to this judgment against Defendant Nozawa are groundless.

D. Companies that manufacture and sell spraying materials containing asbestos have the obligation to give warnings necessary to ensure the safety of persons engaging in spraying work and persons around them, etc. Specifically, such companies should clearly provide the following information: [i] the relevant spraying material contains asbestos and disperses a high level of asbestos particulates along with work; [ii] exposure to asbestos particulates poses a risk of causing serious diseases associated with asbestos, such as lung asbestosis, lung cancer, and mesothelioma; [iii] it is necessary to conduct work to put asbestos, etc. to be used for spraying in a container, take the asbestos, etc. out of a container or mix it at an isolated indoor place of work; [iv] in conducting spraying work, it is necessary to use a supplied-air respirator or air breathing apparatus and protective clothes; [v] it is necessary to prohibit entry of persons other than those who conduct spraying work during spraying work; and [vi] a person who conducts work at the place of spraying after completion of spraying work is also required to wear a dust respirator.

However, regarding spray rock wool containing asbestos, Defendant Taiheiyo Cement did not assume that the building material is independently distributed and adopted a system to ensure the safety of the application of its own spray rock wool containing asbestos by organizing its customers into a business grouping, and it is considered that information triggering the performance of the obligation to pay attention to safety was communicated to subcontracting construction business operators through this system. Therefore, Defendant Taiheiyo Cement is not recognized as having violated the aforementioned obligation to give warnings. Consequently, the claims of the plaintiffs stated in List 4 attached to this judgment against Defendant Taiheiyo Cement are groundless.

E. Defendant Nozawa manufactured and sold mortar admixture containing asbestos, "tailing," for a long period of time. According to a report in September 1989 prepared by the Technical Institute of Nozawa Corporation (hereinafter referred to as the "Nozawa Technical Institute's Report"), as a result of measuring the concentrations of asbestos particulates in plastering work using tailing at the same company in August 1989, the concentration of asbestos particulates in the working environment was 0.065 fibers per cc at the maximum, and the maximum value of concentration of exposure of an individual was 0.035 fibers per cc. Asbestos particulates arising from tailing were miniscule. In the aforementioned measurement, kneading was conducted by using a vessel (container for kneading work) and scoop, and an electric agitator was not used. However, it is hard to say that a work method that is not general was experimentally used at the time of the measurement. Therefore, the aforementioned measurement results cannot be considered to lack credibility, and there is also no other measurement result alternative thereto. Consequently, Defendant Nozawa is not liable to compensate loss or damage in relation to the act of having manufactured and sold tailing, and the claims of the plaintiffs stated in List 6 attached to this judgment are thus groundless.

No. 2 Concerning the claims for the State's compensation for loss or damage against Defendant State

1. Concerning Reason Part II, Chapter I, IV. for a petition for acceptance of final appeal stated by the counsel for final appeal, ONODERA Toshitaka, et al. in 2018 (Ju) 1451 (however, except for the reasons excluded)

(1) The counsel argues that the determination of the court of prior instance mentioned in No. 1, 3.(1)A. above contains illegality of the erroneous interpretation and application of Article 1, paragraph (1) of the State Redress Act. Therefore, we consider this point.

(2) It is reasonable to consider that the failure to exercise the regulatory authority of a national public employee or public employee of a public entity is illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act in relation to a person who has suffered damage due to that failure to exercise if the failure to exercise is found to be extremely unreasonable beyond the permissible limit under specific circumstances in light of the purport and purpose of laws and regulations that provide for the authority and the nature, etc. of the authority (see 2001 (Ju) No. 1760, the judgment of the Third Petty Bench of the Supreme Court of April 27, 2004, Minshu Vol. 58, No. 4, at 1032, 2001 (O) No. 1194, 2001 (O) No. 1196, 2001 (Ju) No. 1172, and 2001 (Ju) No. 1174, the judgment of the Second Petty Bench of the Supreme Court of October 15, 2004, Minshu Vol. 58, No. 7, at 1802, and 2014 (Ju) No. 771, the judgment of the First Petty Bench of the Supreme Court of October 9, 2014, Minshu Vol. 68, No. 8, at 799).

When this determination is applied to this case, the Safety and Health Act is aimed at ensuring workers' safety and health in the workspace, etc. (Article 1) and provides that an employer must take necessary measures to prevent workers' health impairments, etc. (Article 22, etc.). The Safety and Health Act leaves specific measures to be taken by employers to be specified by Order of the Ministry of Labour (Order of the Ministry of Health, Labour and Welfare after amendment by Act No. 160 of 1999) (Article 27, paragraph (1)). In such manner, the Safety and Health Act comprehensively left the aforementioned specific measures to be specified by Ministerial Order because measures to be taken by employers include wide-ranging specialized and technical matters and because it was considered appropriate to leave the content of such measures to be specified by the competent minister in order to amend the content to conform to technological advances and the latest medical knowledge, etc. as promptly as possible.

In consideration of the purpose of the Safety and Health Act and the purport of the aforementioned provisions as mentioned above, the competent minister's regulatory authority under the Safety and Health Act should be exercised at the right time and in an appropriate manner in order to amend the content of measures to conform to technological advances and the latest medical knowledge, etc. as promptly as possible with the primary aim of improving the working environment of workers, preventing harm to their lives and bodies, and ensuring their health (see the aforementioned judgment of the Third Petty Bench of the Supreme Court of April 27, 2004 and the aforementioned judgment of the First Petty Bench of the Supreme Court of October 9, 2014).

In addition, the Safety and Health Act also provides that it is necessary to affix a label to objects, etc. that are likely to cause impairments of workers' health with regard to their effects on the human body, precautions concerning storage or handling, etc. thereof (Article 57). In the same manner as above, it is also necessary to provide guidance and supervision regarding the method of description on such label to make it conform to technical advances and the latest medical knowledge, etc. as promptly as possible. This also applies to guidance and supervision regarding the method of description in a display under the Provisions on the Obligation of Display.

(3)A. According to the aforementioned facts, etc., in 1975, about 70% of asbestos imported in Japan was used at construction sites, and with the dissemination of electric tools that disperse a large amount of particulates, the working environment at construction sites of that time involved a high risk of exposure to asbestos particulates. At that time, most workers, except for spraying workers and some chipping workers, did not wear dust respirators. Therefore, it should be said that persons engaging in construction work were facing a broad and serious risk of being affected with diseases associated with asbestos due to exposure to asbestos particulates. This is also supported by the fact that the number of persons engaging in construction work who developed pneumoconiosis rapidly increased since the latter half of a decade from 1965 and the number of persons engaging in construction work who developed pneumoconiosis and complications of pneumoconiosis or the number of persons engaging in construction work who developed diseases associated with asbestos also remained at a high level thereafter.

B. Moreover, according to the aforementioned facts, medical knowledge about lung asbestosis had been established by around March 1958, and the relationship between exposure to asbestos particulates and the development of lung cancer and mesothelioma as well as the fact that lung cancer and mesothelioma are delayed diseases with a long incubation period had already been made clear by 1972. Furthermore, the 1973 Circular Notice set the inhibitory concentration of asbestos particulates as five fibers (5 μm or longer) per cubic centimeter and thereby significantly strengthened guidance on measures against asbestos particulates from the conventional inhibitory concentration, 2 mg per cubic meter (in terms of the number of asbestos fibers, 33 fibers per cubic centimeter). As a reason for its issuance, the circular notice cited the fact that measures to restrain the concentrations of asbestos particulates in the air had been strengthened in other countries' regulations because it was made clear that asbestos causes the development of lung cancer, mesothelioma, etc. According to the above, it is clear that Defendant State had recognized the necessity of strengthening regulations on asbestos particulates with the revelation of the carcinogenicity of asbestos.

In 1975, asbestos, etc. became subject to the obligation of labeling under Article 57 of the Safety and Health Act by the amendment of the Safety and Health Order and the Safety and Health Regulation, and the Provisions on the Obligation of Display that oblige the display of the effects on the human body of asbestos, etc. at workspaces where asbestos, etc. are handled were established by the amendment of the Specified Chemical Substances Regulations. As about 70% of asbestos imported in Japan was used at construction sites, it should be said that persons who manufacture and sell building materials containing asbestos and construction business operators were assumed to be persons subject to the aforementioned obligation of labeling and persons subject to the aforementioned obligation of display, respectively. It is also clear that Defendant State had recognized the necessity of preventing persons engaging in construction work handling building materials containing asbestos from being affected with diseases associated with asbestos.

C. Furthermore, according to the aforementioned facts, the paper published in 1971 made clear that asbestos particulates at a concentration exceeding five fibers per cubic centimeter were measured in the cutting of an asbestos board at a factory.

(4)A. In light of the aforementioned points, by around 1973, Defendant State could have recognized the possibility that persons engaging in construction work were being exposed to asbestos particulates at a concentration exceeding the inhibitory concentration indicated in the 1973 Circular Notice. Therefore, it can be said that Defendant State should have conducted investigations, such as the measurement of the concentrations of asbestos particulates at construction sites. Then, it should be said that Defendant State could understand the fact that persons engaging in construction work working at indoor construction sites other than workers engaging in asbestos spraying work, for whom the necessity of strong preventive guidance had already been pointed out at that time, were also facing a broad and serous risk of being affected with diseases associated with asbestos if it had conducted such investigations. It should be said that Defendant State could recognize the necessity of informing the aforementioned persons engaging in construction work of the risk of being affected with diseases associated with asbestos and the necessity of wearing an appropriate dust respirator when conducting work that would cause the dispersion of asbestos particulates, such as cutting of building materials containing asbestos, or conducting work around a place where such work is conducted, as well as the necessity of obliging employers to have their workers use dust respirators.

B. As mentioned above, asbestos, etc. became subject to the obligation of labeling under Article 57 of the Safety and Health Act as objects that are likely to cause health impairments by the amendment of the Safety and Health Order and the Safety and Health Regulation in 1975. It is considered that one of the matters to be indicated on a label prescribed in the same Article, "effects on the human body," should be stated while specifying symptoms and impairments as specifically as possible so that the risk of a relevant object is accurately notified and necessary treatment and therapy are promptly ascertained, and it should be considered insufficient to abstractly state the likelihood of causing health impairments. In addition, regarding another one of the matters to be indicated on a label prescribed in the same Article, "precautions concerning storage or handling," precautions necessary to prevent the occurrence of health impairments should be precisely stated. There seems to have been no circumstance that hindered the provision of guidance and supervision with regard to the aforementioned matters to be indicated on a label to ensure specific indication of the risk of development of serious diseases associated with asbestos and precise statement of precautions necessary to prevent the occurrence of health impairments.

However, the specific method of description on a label pertaining to asbestos, etc. indicated in the Labeling Method Circular Notice regarding "precautions" was as follows: "Please observe the following precautions as the inhalation of a large amount of particulates is likely to cause health impairments"; "When handling this product, wear a dust respirator as needed." Such method of description can hardly be considered as describing "effects on the human body" while specifically specifying symptoms and impairments. In addition, it can cause the misunderstanding that the inhalation of particulates is not likely to cause health impairments unless the amount of inhalation is large. Therefore, it was inappropriate in light of medical knowledge as of 1975. Moreover, regarding "precautions concerning storage or handling," it should be said that it was indispensable, at that time, to wear respiratory protective equipment when conducting work causing the dispersion of asbestos particulates, such as cutting of building materials containing asbestos, or conducting work around a place where such work is conducted, at indoor construction sites in order to prevent exposure to asbestos particulates. It was thus insufficient to merely state that it is necessary to wear a dust respirator as needed. In the same way, it should also be considered to have been inappropriate and insufficient that the Director-General of the Labour Standards Bureau of the Ministry of Labour stated, in Circular Notice No. 573, that it suffices to state the same content as the content described in the relevant part of the Labeling Method Circular Notice as matters to be displayed under the Provisions on the Obligation of Display (the name and effects on the human body of a specially controlled substance and handling precautions).

Therefore, the Minister of Labour should have provided guidance and supervision to ensure that the existence of the risk of development of serious diseases associated with asbestos and the necessity of wearing a dust respirator would be indicated in a specific and precise manner as labels on building materials containing asbestos and displays at construction sites where building materials containing asbestos were handled, at an appropriate time in 1975 by issuing a circular notice amending the content of the Labeling Method Circular Notice through the exercise of the regulatory authority under the Safety and Health Act.

C. Moreover, as mentioned above, since enforcement of the Former Safety and Health Regulation in 1947, employers have had various obligations, such as the obligation to prepare respiratory protective equipment, as measures against particulates. In addition, in 1975, most workers did not wear a dust respirator despite the fact that the working environment at construction sites involved a high risk of exposure to asbestos particulates, and persons engaging in construction work were thus facing a broad and serious risk of being affected with diseases associated with asbestos. As mentioned above, Defendant State could understand such situation at indoor construction sites, and therefore, it can be said that Defendant State had needed to strengthen measures, including obliging employers to have workers engaging in work that would cause exposure to asbestos particulates at indoor construction sites wear respiratory protective equipment. In addition, there seems to have been no circumstance that became an obstacle to obliging employers to have the aforementioned workers use respiratory protective equipment by strengthening the obligation to prepare respiratory protective equipment, which had conventionally been imposed on employers, at that time.

Consequently, at an appropriate time in 1975, the Minister of Labour should have obliged employers to have workers engaging in work that would cause exposure to asbestos particulates at indoor construction sites use respiratory protective equipment by exercising the authority to enact a Ministerial Order under the Safety and Health Act.

(5) Considering the aforementioned circumstances in this case together, by October 1, 1975, the day on which the Specified Chemical Substances Regulation after the amendment in 1975 to strengthen regulations on asbestos came into effect, with some exceptions, the Minister of Labour should have provided guidance and supervision to ensure the indication of the following facts as labels on building materials containing asbestos and displays at construction sites where building materials containing asbestos were handled by issuing a circular notice through the exercise of the regulatory authority under the Safety and Health Act: the inhalation of particulates arising from building materials containing asbestos poses a risk of causing serious diseases associated with asbestos, such as lung asbestosis, lung cancer, and mesothelioma; it is necessary to wear an appropriate dust respirator without fail when conducting work that would cause the dispersion of asbestos particulates, such as cutting of building materials containing asbestos, or conducting work around a place where such work is conducted. In addition, the Minister of Labour should have also obliged employers to have workers use respiratory protective equipment when having them engage in the aforementioned work at indoor construction sites by exercising the authority to enact a Ministerial Order under the Safety and Health Act. The Minister of Labour's failure to exercise the aforementioned authorities under the Safety and Health Act on and after October 1, 1975, is extremely unreasonable in regard to workers who engaged in construction work at indoor construction sites and were exposed to asbestos particulates, in light of the purport and purpose of the Safety and Health Act and the nature, etc. of the authorities, and it thus should be considered illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act.

(6) Unlike the aforementioned determination, the court of prior instance determined that the failure to exercise the regulatory authority prior to December 31, 1980, is not illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act and dismissed the claims for compensation for loss or damage or reduced the amount of compensation for loss or damage with regard to some of the plaintiffs stated in Lists 1 and 2 attached to this judgment, as mentioned in No. 1, 3.(1)A. above. This determination of the court of prior instance contains a violation of laws and regulations that has clearly influenced the judgment. The counsel's arguments are well-grounded to the extent of arguing the illegality of the failure to exercise the regulatory authority on and after October 1, 1975, and the judgment in prior instance should inevitably be quashed.

2. Concerning Reason Part II, Chapter I, VII. for a petition for acceptance of final appeal stated by the counsel for final appeal, ONODERA Toshitaka, et al. in 2018 (Ju) 1451

(1) The counsel argues that the determination of the court of prior instance mentioned in No. 1, 3.(1)C. above contains illegality of the erroneous interpretation and application of Article 1, paragraph (1) of the State Redress Act. Therefore, we consider this point.

(2) According to the aforementioned facts, etc., the amendment of the Specified Chemical Substances Regulation in 1995 made it obligatory for employers to have workers engaging in work, such as cutting of asbestos, etc., use respiratory protective equipment on and after April 1, 1995. However, it did not make it obligatory for them to have workers conducting work around a place where the aforementioned work is conducted use respiratory protective equipment. In addition, guidance and supervision pertaining to labels on building materials containing asbestos and displays at construction sites where building materials containing asbestos were handled remained the same as in the past, and guidance and supervision were not provided with regard to the indication of the facts that the inhalation of particulates arising from building materials containing asbestos poses a risk of causing serious diseases associated with asbestos, such as lung asbestosis, lung cancer, and mesothelioma and that it is necessary to wear an appropriate dust respirator without fail when conducting work that would cause the dispersion of asbestos particulates, such as cutting of building materials containing asbestos, or conducting work around a place where such work is conducted. Therefore, it is reasonable to consider that the situation where the failure to exercise the regulatory authority is illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act continued even after April 1, 1995.

According to the aforementioned facts, on October 16, 2003, the Cabinet partially amended the Safety and Health Order and specified products containing asbestos, such as asbestos cement cylinders, extruded cement boards, decorative slates for house roofs, fiber-reinforced cement boards, and ceramic engineering sidings, of which the weight of asbestos contained exceeds 1% of the total weight of the relevant product, as hazardous substances, etc. whose manufacture, etc. is prohibited pursuant to Article 55 of the Safety and Health Act. This amended Cabinet Order came into effect on October 1, 2004. The amount of import of asbestos, which was 8,186 tons in 2004, decreased to 110 tons in 2005 and has been zero since 2006. Therefore, it is possible to consider that the distribution of building materials containing asbestos was almost completely inhibited by the aforementioned amendment. Consequently, it is reasonable to consider that the situation where the failure to exercise the regulatory authority is illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act continued for the period from October 1, 1975, to September 30, 2004, and was dissolved on October 1, 2004.

(3) Unlike the aforementioned determination, the court of prior instance determined that the failure to exercise the regulatory authority on and after April 1, 1995, is not illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act and dismissed the claims for compensation for loss or damage or reduced the amount of compensation for loss or damage with regard to some of the plaintiffs stated in Lists 1 and 2 attached to this judgment, as mentioned in No. 1, 3.(1)C. above. This determination of the court of prior instance contains a violation of laws and regulations that has clearly influenced the judgment. The counsel's arguments are well-grounded to the extent of arguing the illegality of the failure to exercise the regulatory authority for the period up to September 30, 2004, and the judgment in prior instance should inevitably be quashed.

3. Concerning Reasons Part II, Chapter II, IV. and V. for a petition for acceptance of final appeal stated by the counsel for final appeal, ONODERA Toshitaka, et al. in 2018 (Ju) 1451

(1) The counsel argues that the determination of the court of prior instance mentioned in No. 1, 3.(1)D. above contains illegality of the erroneous interpretation and application of Article 1, paragraph (1) of the State Redress Act. Therefore, we consider this point.

(2) Article 57 of the Safety and Health Act provides that a person who transfers or otherwise handles an object that is likely to cause impairments of workers' health which are specified by Cabinet Order must label the container or package of the object with the name and effects on the human body of the object and precautions concerning storage or handling, etc. The same Article is considered to be aimed at preventing persons who handle an object that is likely to cause health impairments from suffering health impairments by making it obligatory to label it with the aforementioned matters. The fact that there is the risk of causing health impairments to persons who handle an object as mentioned above does not change depending on whether the persons fall under workers as defined in Article 2, item (ii) of the Safety and Health Act. Moreover, Article 57 of the Safety and Health Act sets a regulation focused on an object's risk of causing health impairments to persons who handle it. Taking into account the fact that persons who are exposed to the risk due to handling of the object are not limited to workers, it is reasonable to consider that Article 57 of the same Act aims at also protecting persons who handle the object but do not fall under the category of workers by making it obligatory to label the container or package of the object with the prescribed matters. Incidentally, in Article 1, the Safety and Health Act provides ensuring of workers' safety and health in the workspace, etc. as its purpose, and it is thus clear that the major purpose of the Safety and Health Act is to protect workers. However, as the same Article also sets forth the facilitation of the creation of comfortable work environments ("working environments" prior to amendment by Act No. 55 of 1992) as the purpose of the same Act, it is hard to consider that Article 57 of the Safety and Health Act naturally excludes persons who do not fall under the category of workers from the subject of protection in the case where such persons work at the same place as workers and handle an object that is likely to cause health impairments.

In addition, the Provisions on the Obligation of Display provide that an employer must display the name and effects on the human body of a specially controlled substance, handling precautions, and matters pertaining to personal protective equipment to be used at a workspace where a specially controlled substance, including asbestos, is handled. These provisions are considered to oblige the aforementioned display, taking into account that workspaces where a specially controlled substance is handled are hazardous to the human body. The fact that there is a risk for the human body at a workspace where a specially controlled substance is handled does not change depending on whether a person who works there falls under the category of workers. Moreover, the Provisions on the Obligation of Display set a regulation focused on the risk of a place, specifically, a workspace where a specially controlled substance is handled. Taking into account the fact that persons who are exposed to the risk at such place are not limited to workers, it is reasonable to consider that the same provisions aim at also protecting persons who engage in work at such place but do not fall under the category of workers by making it obligatory to make a display at a workspace where a specially controlled substance is handled. Incidentally, it is hard to consider that the Safety and Health Act naturally excludes persons who work at a workspace that is hazardous to the human body but do not fall under the category of workers from the subject of protection, in the same manner as above.

As mentioned in 1.(5) above, it should be said that by October 1, 1975, the Minister of Labour should have provided guidance and supervision to ensure the indication of the following facts as labels on building materials containing asbestos and displays at construction sites where building materials containing asbestos were handled by exercising the regulatory authority under the Safety and Health Act: the inhalation of particulates arising from building materials containing asbestos poses a risk of causing serious diseases associated with asbestos; it is necessary to wear an appropriate dust respirator without fail when conducting work that would cause the dispersion of asbestos particulates or conducting work around a place where such work is conducted. It should be said that the aforementioned regulatory authority should have been exercised not only for protecting workers but also for protecting persons engaging in construction work who do not fall under the category of workers.

For the reasons described above, the Minister of Labour's failure to exercise the aforementioned regulatory authority on and after October 1, 1975, is also extremely unreasonable in relation to persons who engaged in construction work at indoor construction sites and were exposed to asbestos particulates but do not fall under workers as defined in Article 2, item (ii) of the Safety and Health Act, in light of the purport and purpose of the Safety and Health Act and the nature, etc. of the authority, and it should be considered illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act.

(3) Unlike this determination, the court of prior instance determined the failure to exercise the regulatory authority under the Safety and Health Act is not illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act in relation to persons who are not recognized as workers and dismissed the claims for compensation for loss or damage or reduced the amount of compensation for loss or damage with regard to some of the plaintiffs stated in Lists 1 and 2 attached to this judgment, as mentioned in No. 1, 3.(1)D. above. This determination of the court of prior instance contains a violation of laws and regulations that has clearly influenced the judgment. The counsel's arguments are well-grounded, and the judgment in prior instance should inevitably be quashed.

4. Concerning Reason II for a petition for acceptance of final appeal stated by the counsel for final appeal, TATEUCHI Hisashi, et al. in 2018 (Ju) 1452

(1) The counsel argues that the determination of the court of prior instance mentioned in No. 1, 3.(1)B. above contains illegality of the erroneous interpretation of Article 1, paragraph (1) of the State Redress Act and the Safety and Health Act. Therefore, we consider this point.

(2) As mentioned in 1. and 2. above, the failure to exercise the regulatory authority pertaining to labels on building materials containing asbestos and displays at construction sites where building materials containing asbestos were handled, as well as the imposition of the obligation to have workers use respiratory protective equipment, is illegal in terms of the application of Article 1, paragraph (1) of the State Redress Act for the period from October 1, 1975, to September 30, 2004. The determination of the court of prior instance mentioned in No. 1, 3.(1)B.(A) and (B) above is justifiable, and the counsel's argument of illegality of this determination is groundless. Incidentally, the counsel's arguments are considered to include the argument of illegality of the determination of the court of prior instance mentioned in No. 1, 3.(1)B.(C) above to the effect that the failure to exercise the regulatory authority pertaining to the content of safety and health education for the period from January 1, 1981, to March 31, 1995, is illegal in terms of the application of the same paragraph. However, as already explained, for the aforementioned period, the failure to exercise the regulatory authority pertaining to labels on building materials containing asbestos and displays at construction sites where building materials containing asbestos were handled, as well as the imposition of the obligation to have workers use respiratory protective equipment, is recognized as illegal in terms of the application of the same paragraph. Therefore, Defendant State is liable to compensate loss or damage in relation to the Disaster Victims who engaged in work that would cause exposure to asbestos particulates for the aforementioned period, irrespective of whether or not the failure to exercise the regulatory authority pertaining to the content of safety and health education is illegal in terms of the application of the same paragraph. Consequently, the argument of illegality of the determination of the court of prior instance mentioned in No. 1, 3.(1)B.(C) above is one denouncing the parts which do not affect the conclusion of the judgment in prior instance, and is thus not acceptable.

No. 3 Concerning the claims for compensation for loss or damage based on a tort against the defendant building material manufacturers

1. Concerning reasons for a petition for acceptance of final appeal stated by the counsel for final appeal, YOSHIMASU Nobuharu, et al. in 2018 (Ju) 1447, reasons for a petition for acceptance of final appeal stated by the counsel for final appeal, ISHIZAKI Nobunori, et al. in 2018 (Ju) 1448, and reasons for a petition for acceptance of final appeal stated by the counsel for final appeal, YAMANISHI Katsuhiko in 2018 (Ju) 1449 (however, except for the reasons excluded for all of the aforementioned reasons)

(1) The counsel argues that the determination of the court of prior instance mentioned in No. 1, 3.(2)A. above contains illegality of the erroneous interpretation and application of the second sentence of Article 719, paragraph (1) of the Civil Code. Therefore, we consider this point.

(2) Article 719, paragraph (1) of the Civil Code provides as follows: "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." Therefore, the second sentence of the same paragraph is considered as provisions to the effect that if each of multiple persons committed an act that can independently cause loss or damage to a victim but it is not clear which of those persons committed an act that caused loss or damage, the burden of proof of a cause-and-effect relationship is shifted from the public interest perspective in order to protect the victim, and the aforementioned persons are made jointly and severally liable to compensate the entire loss or damage unless they prove that there is no cause-and-effect relationship between each of their individual acts and the loss or damage. In terms of the text of the second sentence of the same paragraph, it is natural to consider that the second sentence of the same paragraph is applicable in the case where a person who truly inflicted loss or damage on a victim is included in multiple tortfeasors specified by the victim. If the aforementioned multiple tortfeasors alone are also made liable to compensate loss or damage through application of the second sentence of the same paragraph in the case where there is any person who has committed an act that can independently cause loss or damage to a victim that is not included in the aforementioned multiple persons, there is a possibility that only persons who have actually not inflicted loss or damage on the victim may be held liable to compensate loss or damage, which should be considered unreasonable.

For the reasons described above, it is reasonable to consider that the non-existence of a person who has committed an act that can independently cause loss or damage to a victim other than multiple tortfeasors specified by the victim is a requirement for the application of the second sentence of Article 719, paragraph (1) of the Civil Code.

Based on an opinion differing from the above, the court of prior instance applied the second sentence of Article 719, paragraph (1) of the Civil Code to the claims for compensation for loss or damage pertaining to the Affected Carpenters who were affected with mesothelioma and thereby determined that Defendant A & A Material, etc. are jointly and severally liable to compensate loss or damage in relation to one-third of loss or damage incurred by the aforementioned Affected Carpenters despite the fact there had been neither argument nor proof with regard to the non-existence of a person who committed an act that can independently cause loss or damage to a victim other than the multiple tortfeasors specified by the victim. This determination of the court of prior instance contains illegality of the erroneous interpretation and application of the second sentence of the same paragraph.

(3) However, according to the aforementioned facts, multiple building material manufacturers, including Defendant A & A Material, were obliged to label building materials containing asbestos with the following facts, etc. when manufacturing and selling those building materials: the building materials contain asbestos and the inhalation of particulates arising from them poses a risk of causing serious diseases associated with asbestos, such as lung asbestosis, lung cancer, and mesothelioma. However, they failed to perform that obligation. In addition, the Affected Carpenters who were affected with mesothelioma had directly handled the Three Types of Boards, and out of the Three Types of Boards, those manufactured and sold by Defendant A & A Materials, etc. arrived a significant number of times at construction sites where the aforementioned Affected Carpenters were working and were used there. The aforementioned Affected Carpenters were cumulatively exposed to asbestos particulates at construction sites as a result of having handled building materials containing asbestos that were manufactured and sold by multiple building material manufacturers. This should be considered as a situation that these building material manufacturers could have assumed.

Moreover, the amount of the aforementioned Affected Carpenters' exposure to asbestos particulates as a result of having directly handled the Three Types of Boards was around one-third of the entire amount of exposure to asbestos particulates of each of them. However, how much effect Defendant A & A Material, etc. individually had on the aforementioned Affected Carpenters' development of mesothelioma is not clear.

As mentioned in (2) above, if each of multiple persons commits an act that can independently cause loss or damage to a victim but it is not clear which of those persons committed an act caused the loss or damage, the burden of proof of a cause-and-effect relationship is shifted through application of the second sentence of Article 719, paragraph (1) of the Civil Code, which was provided from the public interest perspective in order to protect victims, and the aforementioned persons become jointly and severally liable to compensate loss or damage. In this case, there are various circumstances, such as the fact that the Tyree Types of Boards manufactured and sold by Defendant A & A Material, etc. arrived a significant number of times at construction sites where the aforementioned Affected Carpenters were working and were used there, but the amount of the Affected Carpenters' exposure to asbestos particulates as a result of having directly handled the Three Types of Boards accounted for a part of the entire amount of exposure to asbestos particulates of each of them, and the fact that it is not clear how much effect Defendant A & A Material, etc. individually had on the aforementioned Affected Carpenters' development of mesothelioma. Therefore, in this case, it is reasonable to consider that the burden of proof of a cause-and-effect relationship is shifted through application by analogy of the second sentence of the same paragraph in order to maintain a balance with the aforementioned case in which the second sentence of the same paragraph is applicable from the perspective of victim protection. However, in this case, there is a circumstance that the amount of the Affected Carpenters' exposure to asbestos particulates as a result of having directly handled the Three Types of Boards accounted for only a part of the entire amount of exposure to asbestos particulates of each of them. Therefore, it should be said that Defendant A & A Material, etc. are liable to compensate loss or damage to the extent corresponding to the degree of contribution of their own acts to the occurrence of loss or damage that is determined in consideration of such circumstance, etc.

For the reasons described above, it is reasonable to consider that Defendant A & A Material, etc. are jointly and severally liable to compensate loss or damage with regard to one-third of loss or damage incurred by each of the Affected Carpenters who were affected with mesothelioma through application by analogy of the second sentence of Article 719, paragraph (1) of the Civil Code.

(4) Therefore, the determination of the court of prior instance mentioned in No. 1, 3.(2)A. above contains illegality of the erroneous interpretation and application of the second sentence of Article 719, paragraph (1) of the Civil Code. However, the determination of the court of prior instance that Defendant A & A Material, etc. are jointly and severally liable for one-third of loss or damage incurred by each of the Affected Carpenters who were affected with mesothelioma can be accepted in the conclusion.

2. Concerning Reason Part III, Chapter II, II-2, (2)C. for a petition for acceptance of final appeal stated by the counsel for final appeal, ONODERA Toshitaka, et al. in 2018 (Ju) 1451

(1) The counsel argues that the determination of the court of prior instance mentioned in No. 1, 3.(2)B. above contains illegality of the erroneous interpretation and application of the second sentence of Article 719, paragraph (1) of the Civil Code. Therefore, we consider this point.

(2) According to the aforementioned facts, multiple building material manufacturers, including Defendant A& A Material, etc., were obliged to label building materials containing asbestos with the following facts, etc. when manufacturing and selling those building materials: the building materials contain asbestos and the inhalation of particulates arising from them poses a risk of causing serious diseases associated with asbestos, such as lung asbestosis, lung cancer, and mesothelioma. However, they failed to perform that obligation. In addition, the Affected Carpenters who were affected with diseases associated with asbestos other than mesothelioma had also directly handled the Three Types of Boards, and out of the Three Types of Boards, those manufactured and sold by Defendant A & A Materials, etc. arrived a significant number of times at construction sites where the aforementioned Affected Carpenters were working and were used there. It is the same as in the case of the Affected Carpenters who were affected with mesothelioma in that there are various circumstances, such as the fact that the aforementioned Affected Carpenters were cumulatively exposed to asbestos particulates at construction sites as a result of having handled building materials containing asbestos that were manufactured and sold by multiple building material manufacturers, and the fact that the amount of the aforementioned Affected Carpenters' exposure to asbestos particulates as a result of having directly handled the Three Types of Boards was around one-third of the entire amount of exposure to asbestos particulates of each of them but it is not clear how much effect Defendant A & A Material, etc. individually had on the aforementioned Affected Carpenters' development of diseases associated with asbestos. Therefore, it is reasonable to consider that Defendant A & A Material, etc. are also liable to compensate loss or damage in relation to the Affected Carpenters who were affected with diseases associated with asbestos other than mesothelioma in the same manner as in relation to the Affected Carpenters who were affected with mesothelioma.

Incidentally, the court of prior instance determines that the market shares of the Three Types of Boards of Defendant A & A Material, Defendant Nichias, and Defendant MMK are around 30%, around 10%, and around 10%, respectively. In consideration of this, the court of prior instance considers it reasonable to determine that the degrees of contribution of Defendant A & A Material, Defendant Nichias, and Defendant MMK to the development of diseases associated with asbestos of the Affected Carpenters who were affected with diseases associated with asbestos other than mesothelioma are 10%, 3%, and 3%, respectively. However, the aforementioned market shares are hardly considered to be directly reflected in the degree of effect on the development of diseases associated with asbestos of the aforementioned Affected Carpenters, and therefore, it should be said that it is not clear how much effect Defendant A & A Material, etc. individually had on the development of the diseases.

For the reasons described above, it is reasonable to consider that Defendant A & A Material, etc. are jointly and severally liable to compensate loss or damage with regard to one-third of loss or damage incurred by each of the Affected Carpenters who were affected with diseases associated with asbestos other than mesothelioma through application by analogy of the second sentence of Article 719, paragraph (1) of the Civil Code.

(3) Unlike the aforementioned determination, the court of prior instance did not accept the application by analogy of the second sentence of Article 719, paragraph (1) of the Civil Code and calculated the amount of compensation for loss or damage by deeming that the degrees of contribution of Defendant A & A Material, Defendant Nichias, and Defendant MMK to the development of diseases associated with asbestos of the Affected Carpenters who were affected with diseases associated with asbestos other than mesothelioma are 10%, 3%, and 3%, respectively. However, this determination of the court of prior instance contains a violation of laws and regulations that has clearly influenced the judgment. The counsel's arguments are well-grounded as arguments to this effect, and the judgment in prior instance should inevitably be quashed. Then, regarding the amounts to be compensated by Defendant A & A Material, etc., the part that was calculated by the court of prior instance by multiplying 0.1 or 0.03 as the degree of contribution as stated in the calculation document attached to this judgment is to be recalculated by multiplying one-third for all of those defendants, and the amounts are as stated in the "Upheld amounts" column in List 7 attached to this judgment.

3. Concerning Reason Part III, Chapter I, VI. for a petition for acceptance of final appeal stated by the counsel for final appeal, ONODERA Toshitaka, et al. in 2018 (Ju) 1451

(1) The counsel argues that the determination of the court of prior instance mentioned in No. 1, 3.(2)C. above contains a violation of laws and regulations. Therefore, we consider this point.

(2) If a person who manufactures and sells building materials containing asbestos has the obligation to label the building materials with the facts that the building materials contain asbestos and that the inhalation of particulates arising from the building materials poses a risk of causing serious diseases associated with asbestos, such as lung asbestosis, lung cancer, and mesothelioma, etc., as an obligation in relation to persons engaging in work in which the building materials are first used, such as work to attach the building materials to a building, it is reasonable to consider that said person assumes that obligation not only in relation to the aforementioned persons but also in relation to persons who subsequently conduct work to make a hole in the building materials for wiring or pipe laying in the relevant construction work after the building materials have already been installed. The reason is as follows: at building construction sites, existence of the aforementioned risk should also be communicated to persons who conduct work on building materials containing asbestos that have already been installed through a person who is in a position to supervise the construction work, etc., due to being triggered by the aforementioned labels attached to building materials containing asbestos. However, originally, if the aforementioned labels are not attached, there is nothing to trigger a person who is in a position to supervise the construction work, etc. to know the fact that asbestos is contained in the building materials, and such person thus cannot communicate the existence of the aforementioned risk.

(3) Unlike the aforementioned determination, the court of prior instance determined that it should be considered that Defendant A & A Material, etc., Defendant Daiken Corporation, and Defendant Nozawa do not have the aforementioned obligation of labeling in relation to persons who subsequently conduct work on building materials containing asbestos that have already been installed in building construction work. The court of prior instance then determined that the claims of the plaintiffs stated in List 3 attached to this judgment against the aforementioned defendants and the claims of the plaintiffs stated in List 5 attached to this judgment against Defendant Nozawa should be dismissed. However, this determination of the court of prior instance contains a violation of laws and regulations that has clearly influenced the judgment. The counsel's arguments are well-grounded as arguments to this effect, and the judgment in prior instance should inevitably be quashed.

4. Concerning Reasons Part III, Chapter I, VII. (however, except for the reasons excluded) and Chapter III, IV. "2. Concerning Taiheiyo Cement's violation of the duty of care" (2)E. and (3), V-2.(1) (however, except for the reasons excluded), VIII. (however, except for the reasons excluded), and IX. (however, except for the reasons excluded) for a petition for acceptance of final appeal stated by the counsel for final appeal, ONODERA Toshitaka, et al. in 2018 (Ju) 1451

(1) The counsel argues that the determination of the court of prior instance mentioned in No. 1, 3.(2)D. above contains a violation of the rules of thumb, violation of the rules of evidence collection, and illegality of insufficient examination. Therefore, we consider this point.

(2) The court of prior instance determined that companies that manufacture and sell spraying materials containing asbestos have the obligation to give warnings necessary to ensure the safety of persons engaging in spraying work and persons around them, etc. As one of the specific contents of that obligation, the court of prior instance stated that such companies should clearly provide information about the fact that a person who conducts work at the place of spraying after completion of spraying work is also required to wear a dust respirator. The court of prior instance then determined that it is considered that information triggering the performance of the obligation to pay attention to safety was communicated to subcontracting construction business operators because Defendant Taiheiyo Cement had adopted a system to ensure the safety of the application of spraying materials containing asbestos by organizing its customers into a business grouping. Thereby, the court of prior instance determined that Defendant Taiheiyo Cement cannot be considered to have violated the obligation to give warning in relation to persons who conduct work at the places of spraying after completion of spraying work, without finding the fact that Defendant Taiheiyo Cement provided information about the aforementioned necessity of wearing a dust respirator.

However, it cannot be immediately considered that information triggering the performance of the obligation to pay attention to safety was communicated to subcontracting construction business operators just because Defendant Taiheiyo Cement had adopted a system to ensure the safety of the application of spraying materials containing asbestos by organizing its customers into business groupings. Even if information triggering the performance of the obligation to pay attention to safety was communicated, that fact is not sufficient to say that the aforementioned information was clearly provided.

(3) The court of prior instance determined as mentioned in (2) above and ruled that the claims of the plaintiffs stated in List 4 attached to this judgment against Defendant Taiheiyo Cement should be dismissed. However, this determination of the court of prior instance contains a violation of laws and regulations that has clearly influenced the judgment. The counsel's arguments are well-grounded as arguments to this effect, and the judgment in prior instance should inevitably be quashed.

5. Concerning Reason Part III, Chapter III, I. for a petition for acceptance of final appeal stated by the counsel for final appeal, ONODERA Toshitaka, et al. in 2018 (Ju) 1451

(1) The counsel argues that the determination of the court of prior instance mentioned in No. 1, 3.(2)E. above contains a violation of the rules of thumb and violation of the rules of evidence collection. Therefore, we consider this point.

(2) The Nozawa Technical Institute's Report is considered to indicate the results of measurements by the institute regarding the concentrations of asbestos particulates in plastering work using tailing manufactured and sold by Defendant Nozawa. However, the aforementioned measurement can hardly be considered to have been conducted by a neutral third party who has no interest. In addition, no photograph, etc. recording the implementation status of the measurement is attached to the Nozawa Technical Institute's Report. Moreover, at the time of the aforementioned measurement, kneading was conducted by using a vessel (container for kneading work) and scoop, and an electric agitator was not used. However, it does not appear that the Disaster Victims who are mainly plasterers only used a vessel and scoop and did not use an electric agitator when using tailing. Consequently, it should be considered impossible to find that asbestos particulates that arose when the aforementioned Disaster Victims were using tailing were miniscule based on the Nozawa Technical Institute's Report.

(3) Unlike the aforementioned determination, based on the Nozawa Technical Institute's Report, the court of prior instance determined that asbestos particulates that arose from tailing were miniscule and determined that the claims of the plaintiffs stated in List 6 attached to this judgment against Defendant Nozawa should be dismissed. However, this determination of the court of prior instance contains a violation of laws and regulations that has clearly influenced the judgment. The counsel's arguments are well-grounded, and the judgment in prior instance should inevitably be quashed.

No. 4 Conclusion

For the reasons described above, of the judgment in prior instance, the part concerning the claims of the plaintiffs stated in List 1 attached to this judgment against Defendant State, the part against the plaintiffs stated in List 2 attached to this judgment concerning the claims of the aforementioned plaintiffs against Defendant State, the part concerning the claims of the plaintiffs stated in List 3 attached to this judgment against Defendant A & A Material, etc., Defendant Daiken Corporation, and Defendant Nozawa, the part concerning the claims of the plaintiffs stated in List 4 attached to this judgment against Defendant Taiheiyo Cement, and the part concerning the claims of the plaintiffs stated in Lists 5 and 6 attached to this judgment against Defendant Nozawa are quashed, and this case is remanded to the court of prior instance to be further examined in relation to the aforementioned parts. The part concerning the claims of the plaintiffs stated in the "Name of appellant of final appeal" column in List 7 attached to this judgment (including litigation successors of the persons stated in the same column) against Defendant A & A Material, etc. is modified as stated in paragraph 2 of the main text, and the final appeals filed by Defendant State and Defendant A & A Material, etc. are dismissed.

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

List 1 attached to this judgment

X1 (1)

X2-1 (2-1)

X2-2 (2-2)

X2-3 (2-3)

X3 (3)

X4 (4)

X6 (6)

X9 (9)

X14 (14)

X15 (15)

X16 (16)

X17 (17)

X19-1 (19-1)

X19-2 (19-2)

X22 (22)

X30-1 (30-1)

X30-2 (30-2)

X30-3 (30-3)

X32 (32)

X34 (34)

X37 (37)

X39-1 (39-1)

X39-2 (39-2)

X41-1 (41-1)

X41-2 (41-2)

X43 (43)

X44-1 (44-1)

X44-2 (44-2)

X45 (45)

X48-1 (48-1)

X48-2 (48-2)

X50 (50)

X51(51)

Litigation successor of deceased E (53)

X53-1

Litigation successor of deceased E (53)

X53-2

X55 (55)

X57 (57)

X59 (59)

X60 (60)

X62 (62)

X64 (64)

List 2 attached to this judgment

X7 (7)

X10 (10)

X11 (11)

X21 (21)

X24-1 (24-1)

X24-2 (24-2)

X24-3 (24-3)

X24-4 (24-4)

X24-5 (24-5)

X27 (27)

X28 (28)

X29 (29)

X31(31)

X33 (33)

Litigation successor of deceased C (35)

X35-1

Litigation successor of deceased C (35)

X35-2

X36 (36)

X40-1 (40-1)

X40-2 (40-2)

Litigation successor of deceased D (42)

X42-1

Litigation successor of deceased D (42)

X42-2

X46 (46)

X47 (47)

X52 (52)

X54 (54)

X76 (76)

List 3 attached to this judgment

X15 (15)

X70 (70)

List 4 attached to this judgment

X10 (10)

Litigation successor of deceased B (18)

X18-1

Litigation successor of deceased B (18)

X18-2

X30-1 (30-1)

X30-2 (30-2)

X30-3 (30-3)

X31 (31)

X36 (36)

X39-1 (39-1)

X39-2 (39-2)

X50 (50)

X52 (52)

Litigation successor of deceased E (53)

X53-1

Litigation successor of deceased E (53)

X53-2

X58 (58)

X60 (60)

X62 (62)

X64 (64)

X66 (66)

X69 (69)

X71 (71)

List 5 attached to this judgment

X39-1 (39-1)

X39-2 (39-2)

X50 (50)

X69 (69)

List 6 attached to this judgment

X1 (1)

X17 (17)

X38 (38)

X45 (45)

List 7 attached to this judgment

Appellant No.; Name of the appellant of final appeal; Upheld amount; First day of calculation of delay damages; Rate of cost bearing

2-1; X2-1; 4,583,333 yen; August 24, 2007; three-fourths

2-2; X2-2; 2,291,666 yen; August 24, 2007; three-fourths

2-3; X2-3; 2,291,666 yen; August 24, 2007; three-fourths

3; X3; 8,250,000 yen; May 29, 2007; four-fifths

4; X4; 9,166,666 yen; November 20, 2006; three-fourths

6; X6; 9,166,666 yen; September 25, 2002; three-fourths

7; X7; 9,166,666 yen; March 13, 2007; three-fourths

9; X9; 4,766,666 yen; June 28, 2006; seven-eighths

16; X16; 9,166,666 yen; July 30, 2002; three-fourths

25; X25; 8,066,666 yen; February 28, 2007; four-fifths

26; X26; 8,250,000 yen; June 29, 2005; four-fifths

28; X28; 4,766,666 yen; September 21, 2007; seven-eights

29; X29; 9,166,666 yen; March 13, 2007; three-fourths

37; X37; 9,166,666 yen; July 27, 2005; three-fourths

41-1; X41-1; 4,125,000 yen; May 15, 2008; four-fifths

41-2; X41-2; 4,125,000 yen; May 15, 2008; four-fifths

43; X43; 8,250,000 yen; March 31, 2009; four-fifths

46; X46; 8,250,000 yen; September 16, 2009; four-fifths

47; X47; 9,166,666 yen; August 14, 2009; three-fourths

54; X54; 8,250,000 yen; December 24, 2008; four-fifths

55; X55; 7,260,000 yen; May 7, 2008; four-fifths

59; X59; 7,260,000 yen; January 16, 2009; four-fifths

61; X61; 4,766,666 yen; April 25, 2007; seven-eights

63; deceased F; 7,260,000 yen; December 9, 2008; four-fifths

67; X67; 4,766,666 yen; November 28, 2008; seven-eights

68; X68; 4,766,666 yen; September 11, 2009; seven-eights

74; X74; 8,250,000 yen; June 26, 2008; four-fifths

Calculation document attached to this judgment

1. Out of the Affected Carpenters who died of diseases associated with asbestos, those who were affected with lung cancer and had a smoking history

(Concerning Appellant Nos. 3, 26, 41-1, 41-2, 43, 46, 54, and 74 in Attachment 2 "List in the main text" attached to the judgment in prior instance)

(1) Concerning Defendant A & A Material

25,000,000 yen x 0.1 x 0.9 x 1.1 = 2,475,000 yen

(2) Concerning Defendant Nichias and Defendant MMK

25,000,000 yen x 0.03 x 0.9 x 1.1 = 742,500 yen

2. Out of the Affected Carpenters who died of diseases associated with asbestos, those other than those mentioned in 1. above

(Concerning Appellant Nos. 2-1, 2-2, 2-3, 4, 6, 7, 16, 29, 37, and 47)

(1) Concerning Defendant A & A Material

25,000,000 yen x 0.1 x 1.1 = 2,750,000 yen

(2) Concerning Defendant Nichias and Defendant MMK

25,000,000 yen x 0.03 x 1.1 = 825,000 yen

3. Out of the Affected Carpenters who are alive or whose cause of death cannot be determined, those who have been affected with lung asbestosis (supervision classification No. II; with complications)

(Concerning Appellant Nos. 9, 28, 61, 67, and 68)

(1) Concerning Defendant A & A Material

13,000,000 yen x 0.1 x 1.1 = 1,430,000 yen

(2) Concerning Defendant Nichias and Defendant MMK

13,000,000 yen x 0.03 x 1.1 = 429,000 yen

4. Out of the Affected Carpenters who are alive or whose cause of death cannot be determined, those who have been affected with lung cancer and have a smoking history

(Concerning Appellant Nos. 55, 59, and 63)

(1) Concerning Defendant A & A Material

22,000,000 yen x 0.1 x 0.9 x 1.1 = 2,178,000 yen

(2) Concerning Defendant Nichias and Defendant MMK

22,000,000 yen x 0.03 x 0.9 x 1.1 = 653,400 yen

5. The Affected Carpenters who are alive and have been affected with diffuse pleural thickening

(Concerning Appellant No. 25)

(1) Concerning Defendant A & A Material

22,000,000 yen x 0.1 x 1.1 = 2,420,000 yen

(2) Concerning Defendant Nichias and Defendant MMK

22,000,000 yen x 0.03 x 1.1 = 726,000 yen

Incidentally, the amount of compensation for loss or damage to persons whose Appellant No. is attached with a branch number is calculated by multiplying the amount calculated through the aforementioned calculation by the share in inheritance.

Justice MIYAMA Takuya

Justice IKEGAMI Masayuki

Justice KOIKE Hiroshi

Justice KIZAWA Katsuyuki

Justice YAMAGUCHI Atsushi