1995.07.07

1992 (O) 1503

Minshu Vol. 49, No. 7 at 1870

Judgment concerning the case where the court determined that there was no illegality in the setting of the outdoor noise level for the car noise to which people living near an ordinary national road, etc. were exposed

Case to seek noise and emission regulations, etc. for national road Route 43 and Hanshin Expressways

Judgment of the Second Petty Bench, dismissed

Osaka High Court, Judgment of February 20, 1992

1. Where people living near an ordinary national road, etc. are exposed to car noise from the roads almost all day long, it is not illegal to apply the following method: (1) categorize the areas around the roads into three areas according to the traffic volume and also into four zones according to the road structure, and then divide the people living near the roads into 19 groups in total on the basis of the distance to the edges of the roads and the visibility of the roads from their residences; (2) based on the results of the expert testimony, extract the minimum and maximum values of equivalent continuous noise level (Leq) for each group, and presume such a certain range of values as the basic outdoor noise level to which people in each group were exposed on a daily basis.

2. Where, due to car noise, etc. caused by the use of an ordinary national road, etc., people living near the roads suffered interference with their sleep and with their conversations face-to-face or on the phone, family time , listening of TV and radio, and also suffered mental distress due to the aggravating combination of these problems, given the facts that (1) these roads have made considerable contribution to the intra-regional traffic mainly for distribution of industrial supplies, but they are trunk roads and cannot be deemed to be absolutely necessary for maintaining the daily lives of the local residents; and (2) even if people living near the roads benefit from the existence of the roads to some extent, the benefit they enjoy and the damage they suffer are not mutually complementary, i.e. it is not that the former necessarily increases as the latter increases, the damage that the people living near the roads suffered goes beyond the limit of damage that they must tolerate in their life in society, and it should be concluded that there is a defect in the installation and administration of the roads.

3. Where a number of victims allege that they suffer damage, mainly nuisance, due to car noise caused by the use of an ordinary national road, etc., and claim compensation for their damage, within the limit of damage common to all of the victims, in the form of the same amount of solatium for each person, if the court, in order to distinguish victims who suffered damage beyond the tolerable limit and those who did not suffer damage to that limit, uses the outdoor equivalent continuous noise level at the locations of people’s residences as the major standard and uses the distance between the locations of their residences and the edges of the roads as the supplementary standard, such method is not unreasonable for it takes in consideration the mode of causing infringement and its relevance with the content of damage, and therefore there is no illegality in such setting of standards.

(Concerning 1 to 3) Article 185 of the Code of Civil Procedure; (Concerning 2 and 3) Article 2, paragraph (1) of the Act on State Liability for Compensation, Article 709 of the Civil Code

Article 185 of the Code of Civil Procedure
When making a judgment, the court, in light of the entire import of the oral argument and the result of the examination of evidence, and based on its free determination, shall decide whether or not the allegations on facts are true.

Article 2, paragraph (1) of the Act on State Liability for Compensation
(1) When any defect in the installation or administration of a road, river or any other public works has caused damage to another person, the State or the public entity concerned shall be liable to compensate such damage.

Article 709 of the Civil Code
A person who has intentionally or negligently infringed any right of others shall be liable to compensate any damages resulting in consequence.

The final appeal is dismissed.
The appellants shall bear the cost of the final appeal.

I. Concerning Reasons for Final Appeal I argued by the appeal counsels, KATO Kazuo, NAKANO Tetsuhiro, SUZUKI Kenta, SAMURA Hiroyuki, HAGIWARA Hidenori, HARADA Katsuharu, NAKAMURA Makoto, TANAKA Kiyoshi, AKANISHI Yoshifumi, YAMAMOTO Keizo, SUZUI Hiroshi, and HARAGO Jiro, by the appeal counsels for appellant the State, ITO Katsunori, MASUDA Shigeki, YONEHARA Mutsuhiro, OMORI Masao, YOSHIZAKI Osamu, SAKAI Toshio, YOKOTA Koji, ABURAYA Mitsutoshi, ADACHI Toru, ONISHI Nobuji, TAMAKI Minoru, MATSUMOTO Ryo, HIRANO Yutaka, ISHIHARA Tsuyoshi, SHITA Koji, SAIKI Masao, MATSUDERA Katsunori, and SANO Masamichi, and by the appeal counsels for appellant Hanshin Expressway Public Corporation, HARAI Ryoichiro, YOSHIMURA Osamu, URABE Akihiro, TANAKA Hiroshi, OHARA Masatoshi, and SHINO Yukinori
1. Concerning Reasons for Final Appeal I(I)-1
In summary, the appeal counsels argue that the court of prior instance did not determine the minimum standards for the noise level and emission density, etc. at which the noise, emissions, etc. from cars driving on an ordinary national road Route 43 and two expressways of Hyogo Prefecture, Kobe-Nishinomiya Route and Osaka-Nishinomiya Route (these roads shall hereinafter be referred to as the “Roads”) pose the risk of causing nuisance and other damage to people living near the roads, and that the judgment of prior instance that found a defect in the installation or administration of the Roads is illegal for its defective reasons.
The defect in the installation or administration of public structures set forth in Article 2, paragraph (1) of the Act on State Liability for Compensation means the condition wherein particular public structures lack safety at a level that they ordinarily should provide, or in other words, have the risk of causing harm to others. This includes the case where the public structures, when used for the intended purpose, have the risk of causing harm to third parties other than the users, and if the installer/administrator of the public structures has provided such risky structures for use, and as a result, the people living near the structures have suffered damage beyond a limit of damage that they must tolerate in their life in society, it should be construed that the installer/administrator, in principle, cannot avoid the liability under the provision of said paragraph (See 1976 (O) No. 395, judgment of the Grand Bench of the Supreme Court of December 16, 1981, Minshu Vol. 35, No. 10, at 1369). In cases where people living near a road have made a claim for damage under the provision of said paragraph against the installer/administrator of the road, if it is found that the noise, emissions, etc. from the road actually caused damage to such people beyond a limit of damage that they must tolerate in their life in society, it necessarily means that it is found that the road had the risk of causing harm to others as far as these people are concerned. Therefore, it is not impossible to reach the conclusion that there was a defect in the installation or administration of the road, without determining the minimum standards for the noise level and emission density, etc. at which such risk is posed. The judgment of prior instance found the fact that the noise, emissions, etc. from the Roads actually caused damage to the appellees of final appeal living near the roads beyond a limit of damage that they must tolerate in their life in society, and then drew the conclusion that there was a defect in the installation or administration of the Roads, and it therefore can be affirmed as justifiable. The judgment of prior instance does not contain such illegality as alleged by the appeal counsels, and their argument cannot be accepted.
2. Concerning Reasons for Final Appeal I(I)-3
In summary, the appeal counsels argue that the judgment of prior instance made a finding of the outdoor noise level to which the appellees living near the Roads were exposed, and such finding is illegal for defective reasons, inconsistent reasons, violation of the reasonable inference rule, and violation of the rule for admission of evidence.
In cases where a number of people living near particular public structures allege that they have suffered damage caused by the noise from the structures and seek compensation for such damage, it should be construed that, when determining the outdoor noise level to which each of such persons is exposed on a daily basis, it is permissible, as a reasonable method, to divide these people into appropriate groups while taking into consideration factors that have impact on the noise level to which these people were exposed, such as the nature of the source of the noise, the sound volume and direction of the noise, and the relationship between the location of the source of noise and the locations of people’s residences, and then presume the noise level for each group.
The source of the noise in dispute in this case is cars driving on the Roads, and the noise continues almost all day long. The court of prior instance categorized the areas around the Roads into three areas according to the traffic volume and also into four zones according to the road structure, and then divided the appellees living near the Roads into 19 groups in total on the basis of the distance to the edges of the Roads and the visibility of the Roads from their residences. Then, based on the results of the expert testimony given before the court of prior instance (concerning 47 households, about one-third of all households of the appellees), the court extracted the minimum and maximum values of equivalent continuous noise level (Leq) for each group, and presumed such a certain range of values as the basic outdoor noise level to which people in each group were exposed on a daily basis. In light of the facts legally determined by the court of prior instance, this method of presuming the outdoor noise level can be affirmed as reasonable. The judgment of prior instance does not contain such illegality as alleged by the appeal counsels, and their argument cannot be accepted.
3. Concerning other reasons in Reasons for Final Appeal I
The fact finding and determination by the court of prior instance on the point alleged by the appeal counsels, in light of the evidence mentioned in the judgment of prior instance, can be affirmed as justifiable, and the fact finding and determination process does not contain such illegality as alleged by the appeal counsels. The appeal counsels’ argument is nothing other than a criticism of the admission of evidence or fact finding, which come under the exclusive jurisdiction of the court of prior instance, or a claim criticizing the judgment of prior instance based on misconstruction of the judgment, and therefore cannot be accepted.

II. Concerning Reasons for Final Appeal II
In summary, the appeal counsels argue that in order to find that there was any defect in the installation or administration of the Roads, there must have been a possibility for the appellants to avoid damage under financial, technical and social constraints, but the court of prior instance found a defect without making a determination on this point, and in this respect, the judgment of prior instance is illegal for omission in a determination or erroneous construction and application of Article 2, paragraph (1) of the Act on State Liability for Compensation.
Article 2, paragraph (1) of the Act on State Liability for Compensation, for the purpose of giving relief to victims under the rule of liability for danger, provides that the State or a public entity shall be liable for causing any damage to others due to a defect in the installation or administration of public structures. It should be construed that the possibility to avoid damage alleged by the appeal counsels is not a positive requirement for finding a defect in the installation or administration of the Roads.
The judgment of prior instance, in (II) of the section in the reasons attached thereto, entitled “VIII. Illegality (tolerable limit),” closely examined the details of the measures implemented by the appellants and the effectiveness thereof, and in (V) of the same section, it stated that although the appellants’ efforts to implement various measures at huge costs can be appreciated, these measures cannot be evaluated as sufficiently effective. In light of all of these holdings, the court of prior instance can be considered to have determined, from the same stance as ours in terms of the construction of Article 2, paragraph (1) of the Act on State Liability for Compensation, that it cannot be said that there was no possibility for the appellants to avoid damage to the appellees due to the use of the Roads. Such fact finding and determination, in light of the evidence mentioned in the judgment of prior instance, can be affirmed as justifiable. The judgment of prior instance does not contain such illegality as alleged by the appeal counsels, and their argument cannot be accepted.

III. Concerning Reasons for Final Appeal III
1. Concerning Reasons for Final Appeal III(I)
In summary, the appeal counsels argue as follows. The infringement alleged in this case was caused by the noise, emissions, etc. from cars driving on the Roads. However, driving a car is a useful act in society, and the Roads are of a highly public nature. The infringement in dispute is not so serious and the damage that the appellees living near the Roads are suffering is nothing more than a feeling of discomfort to the noise, etc. In this respect, the appellees’ damage is within the bounds of damage that they must tolerate in their life in society but the judgment of prior instance found that it goes beyond the tolerable limit, and therefore the judgment is illegal for erroneous construction and application of Article 2, paragraph (1) of the Act on State Liability for Compensation, defective reasons, inconsistent reasons, and violation of the reasonable inference rule.
When determining whether or not the use of public structures constitutes illegal infringement of a third party’s right or legal interest and the installer/administrator of the structures should be liable to compensate for such infringement, it is necessary to make comparison in terms of factors such as the mode of causing the infringement and the degree of infringement, the nature and the content of the infringed right or interest, and the content and degree of the public nature of the act of causing the infringement and of the necessity of such act for the public interest, and it is also necessary to take into consideration other circumstances such as how the infringement started and in what situation it has continued, whether or not any measures to prevent damage have been implemented during the period when the infringement exists, and the details, effect, etc. of such measures. The issue of liability for compensation should be determined by examining all matters concerned (See the aforementioned judgment of the Grand Bench of the Supreme Court).
In this case, according to the facts legally determined by the court of prior instance, the noise, etc. as found by the court of prior instance penetrated into the living environment near the Roads almost all day long, and this caused infringement to the appellees living there, or more specifically, they suffered, due to the noise, interference with their sleep and with their conversations face-to-face or on the phone, family time , listening of TV and radio, and also suffered mental distress due to the aggravating combination of these problems. The appellees who live within 20 meters from the edges of the Roads were also subject to tangible and intangible burden, such as their laundry getting dirty due to the suspended particulates contained in car emissions. On the other hand, the Roads have made considerable contribution to the intra-regional traffic mainly for distribution of industrial supplies, and as the number of cars in use increased and the share of car transportation in the total cargo and passenger transportation increased, the contribution of the Roads also increased. The Roads are trunk roads that were installed to meet various needs in industrial and other policies, and they cannot be deemed to be absolutely necessary for maintaining the daily lives of the local residents. Even if people living near the Roads, including some of the appellees, benefit from the existence of the Roads to some extent, the benefit they enjoy and the damage they suffer are not mutually complementary, i.e. it is not that the former necessarily increases as the latter increases. Furthermore, the transition of the traffic volume, etc. of the Roads was almost as predicted at the time of opening. Therefore, the appellants should have implemented, before opening the Roads, measures to deal with the possible impact of the noise, etc. on people living near the Roads, but the appellants opened the Roads that pass through the living environment of these people, without taking said measures. Although the appellants later implemented environmental measures at huge costs, these measures cannot be deemed to be sufficiently effective. In view of these facts, the court of prior instance determined that the damage that the appellees suffered cannot be deemed to be within the bounds of damage that they must tolerate in their life in society only because of the public nature or necessity for the public interest of the Roads, and the use of the Roads constitutes illegal infringement of their interest and therefore the appellants should be liable to compensate for the appellee’s damage. This determination can be affirmed as justifiable, and the determination process does not contain such illegality as alleged by the appeal counsels. The appeal counsels’ argument cannot be accepted.
2. Concerning Reasons for Final Appeal III(II)
In summary, the appeal counsels argue that the judgment of prior instance set standards for distinguishing the appellees who suffered damage due to the noise, emissions, etc. from the Roads beyond a tolerable limit, and those who did not suffer damage to that limit, and such setting of standards is illegal for defective reasons, inconsistent reasons, and violation of the reasonable inference rule, and also illegal for erroneous construction and application of Article 2, paragraph (1) of the Act on State Liability for Compensation.
In cases where a number of victims allege that they suffer damage, mainly nuisance that is not so serious as to cause physical damage, and claim compensation for their damage, within the limit of damage common to all of the victims, in the form of the same amount of solatium for each person, when determining whether or not each person suffered damage beyond the tolerable limit, we find it reasonable to set common standards while taking into consideration the mode of causing infringement and its relevance with the content of damage, and distinguish victims who suffered damage beyond the tolerable limit and those who did not suffer damage to that limit based thereon. According to the facts legally determined by the court of prior instance, in this case, the level of mental distress that the victims suffered from nuisance, which is their common damage, can be deemed to be in proportion to the outdoor noise level, which is the major infringement. Having considered the factors mentioned in 1 above, and also taking into consideration the environmental standards under Article 9 of the Basic Act for Environmental Pollution Control and the values of car noise limits in the designated areas set forth in Article 17, paragraph (1) of the Noise Regulation Act, the court of prior instance found the following facts: (i) The appellees who were exposed to 65 Leq or greater noise at the locations of their residences suffered damage beyond the tolerable limit, irrespective of the difference in distances between the edges of the Roads and the locations of their residences. (ii)(1) All of the appellees whose residences are located within 20 meters from the edges of the Roads suffered damage beyond the tolerable limit due to the suspended particulates contained in car emissions, and (2) considering that they suffered psychological damage, etc. in addition to damage caused by the noise and emissions, the [total] damage they suffered was beyond the tolerable limit for people who suffered 60 Leq or greater noise. In short, the judgment of prior instance, in order to distinguish people who suffered damage beyond a tolerable limit and those who did not suffer damage to that limit, used the equivalent continuous noise level at the locations of people’s residences as the major standard, and used the distances between the locations of their residences and the edges of the Roads as the supplementary standard. Such setting of standards cannot be judged to be unreasonable, and the judgment of prior instance is not illegal as alleged by the appeal counsels. The appeal counsels’ argument is nothing other than a criticism of the admission of evidence or fact finding, which come under the exclusive jurisdiction of the court of prior instance, or a claim criticizing the judgment of prior instance based on misconstruction of the judgment, and therefore cannot be accepted.

IV. Concerning Reasons for Final Appeal IV
In light of the evidence mentioned in the judgment of prior instance, it is not impossible to affirm the finding and determination of the court of prior instance on the alleged point, and the fact finding and determination process does not contain such illegality as alleged by the appeal counsels. The appeal counsels’ argument cannot be accepted.

Appellees A, B, C, D, and E withdrew part of their action in this instance. As a result, for Appellees No. 71 and 75 in List of Amounts of Damages Granted (I) cited in the main text of the judgment of prior instance, and Appellees No. 114, 116, and 152 in List of Amounts of Damages Granted (II), the figures in the sections of attorney’s fee and total amount have been revised as indicated in the attached table.

V. Therefore, according to Article 401, Article 95, Article 89, and Article 93 of the Code of Civil Procedure, the judgment has been rendered in the form of the main text by the unanimous consent of the Justices.

Justice KAWAI Shinichi
Justice NAKAJIMA Toshijiro
Justice ONISHI Katsuya
Justice NEGISHI Shigeharu