1981.12.16

1976 (O) 395

Summary of Reasons for Judgment upon case demanding injunction against night flight at Osaka International Airport

Judgment of the Grand Bench, other OUTLINE OF THE CASE:The litigation concerning public environmental pollution at Osaka International Airport is the case of demand against the State, for an injunction to prohibit takeoffs and landings by aircraft at the Airport between 9:00 p.m. and 7:00 a.m. of the following day and for compensation for past and future damages, by residents dwelling around the Airport. The plaintiffs allege that damages are being sustained due to the noise, vibrations, exhaust fumes, and so forth, from aircraft taking off and landing at the Airport, which was established by the Minister of Transportation and has been under his management. The Osaka District Court, the court of first instance, found the plaintiffs to have sustained various damages to their daily lives, and as for the injunction against arrival and departure at night, by reason of encroachment of personal rights, ruled that use of the Airport should not be permitted during the hours of 10:00 p.m. to 7:00 a.m. of the following day, except in cases of emergency or unavoidable circumstances; however, it dismissed that part of the demand concerning use of the Airport between 9:00 p.m. and 10:00 p.m. of the same day ruling it to be within the limits of endurance. Relative to the compensation for damages, the demand for compensation for past damages was admitted, based on the State Redress Law; however, the demand for compensation for future damages was dismissed. Furthermore, concerning the plaintiffs that moved in after the intensification of aircraft noise, that demand was dismissed, ruling that moving into the damage area was a selection of residence of their own volition. The Osaka High Court, the court of second instance, recognized the damage to the health of the plaintiffs; moreover, concerning the injunction against arrival and departure at night, also admitted the demand for injunction between the hour of 9:00 p.m. to 10:00 p.m. of the same day; concerning the compensation for damages, not only admitted the compensation for past damages but also for future damages, ruling that an assumption could be made that encroachment conditions and occurrence of damages will continue in like manner, thus this part of the demand was acknowledged. Further, the demand by the plaintiffs who moved in after the intensification of the aircraft noise was admitted. Against the judgment of the Osaka High Court, "Jokoku Appeal" was made by the State; and the judgment was rendered by the Grand Bench of the Supreme Court on December 16, 1981.Decided on December 16, 1981Case Number (O) No. 395 of 1976CONTENTS:I. Majority Opinion A. Opinion on the Claim for Injunctive Relief--On the Validity of the Claim for Injunctive Relief Against the Use of the Airport (Ground 1 of Jokoku Appeal) B. Opinion on the Claim for Past Damages1. On the Meanings of the "Defects in the Establishment and Management of Public Facilities", etc. (Ground 5 of Jokoku Appeal)2. On the Illegality of the Findings and Judgments relative to Injuries and Causal Relation (Ground 3 of Jokoku Appeal)3. On the Illegality of the Findings and Judgments on Balancing Interests (Grounds 4.1-4 of Jokoku Appeal)4. On the Illegality in Computing the Amount of Mental Damages (Ground 6.1 of Jokoku Appeal)5. On the Illegality of the Findings and Judgments relative to the Application of the Principle of Moving to the Nuisance (Ground 4.5 of Jokoku Appeal)C. Opinion on the Claim for Future Damages--On the Validity of the Claim for Damages relative to the Unlawful Act in the Future (Grounds 6.2-3 of Jokoku Appeal)II. Separate OpinionsA. Separate Opinions on the Claim for Injunctive Relief(1), (2) Concurring Opinion by Justices Ito, Yokoi and Miyazaki(3) Dissenting Opinion by Justice Dando(4) Dissenting Opinion by Justice Tamaki(5) Dissenting Opinion by Justice Nakamura(6) Dissenting Opinion by Justice Kinoshita B. Separate Opinions on the Claim for Past Damages(7) Concurring Opinion on Ground 5 of Jokoku Appeal by Justices Hattori, Ito, Miyazaki, Terada and Taniguchi(8) Opinion on Grounds 5 and 3.3 of Jokoku Appeal, Concurring Opinion on Grounds 4.1-4 and Opinion on Ground 6.1 by Justice Tamaki(9) Dissenting Opinion on Grounds 5, 3 and 4.1-4 of Jokoku Appeal and Concurring Opinion on Ground 6.1 by Justices Kurimoto, Fujisaki, Motoyama and Yokoi(10), (11) Concurring Opinion on the Matters concerning Appellees, P1 and P2, in Ground 4.5 of Jokoku Appeal by Justices Terada, Kurimoto and Taniguchi(12) Dissenting Opinion on the Above-Mentioned Subject by Justices Dando, Nakamura, Kinoshita and Ito(13), (14) Supplementary Dissenting Opinion on the Above-Mentioned Subject by Justices Kinoshita and Dando(15) Dissenting Opinion on the Above-Mentioned Subject by Justice Tamaki C. Separate Opinion on the Claim for Future Damages(16) Dissenting Opinion by Justice Dando I. Majority Opinion A. Opinion on the Claim for Injunctive Relief--On the Validity of the Claim for Injunctive Relief Against the Use of the Airport (Ground 1 of Jokoku Appeal)It is generally understood that the substance of power to manage the State's facilities such as the airport in this case is not an authoritative one, and that such regulation by private law would be appropriate. However, the law, on one hand, invests the Minister of Transportation with wide authority for administrative regulation of air transportation, in order to enable him to effectively pursue a suitable aviation policy; yet, on the other hand, it provides that the Minister of Transportation himself or the New Tokyo International Airport Public Corporation, a special corporation under the specific direction or supervision of the Minister of Transportation, should establish and manage main public airports (the so-called "first-class and second-class airports" in the Airport Maintenance and Material Law) which are necessary for international air lines or major domestic air lines, in view of their public importance. Considering the purpose for such nationalization of airports, among matters concerning management of the Airport which is a typical state-operated airport, it is reasonable to recognize that, at least, in regards to matters having a direct bearing on the achievement and materialization of the primary functions of an airport, such as regulation of takeoffs and landings, management based upon the authority to manage an airport and regulation based upon the authority of the aviation administration are carried out indivisibly and inseparably, and such regulation is carried out based upon comprehensive judgment from a composite viewpoint which combines both of the foregoing standpoints. The claim for injunctive relief in this case is understood to be the demand, by appellees who are residents around the Airport, for an injunction to prohibit takeoffs and landings at the Airport during certain hours, to eliminate nuisance or prevent nuisance, based upon personal rights or environmental rights, and the foregoing is understood to be the so-called ordinary civil claim for presentation of nonfeasance against the appellant, the State, the main constituent for the establishment and management of the Airport. However, as previously stated, since the use of the Airport for takeoffs and landings is the result of inseparable actions based upon comprehensive judgment of two different types of authority of the Minister of Transportation, that is, the authority to manage an airport and the authority for aviation administration, the above claim for injunctive relief cannot but inevitably involve the demand for revocation, alteration or invocation of the exercise of the authority of aviation administration. Therefore, apart from the possibility that the appellees can demand something by means of administrative suits, they do not have the above civil right to demand presentation of injunctive relief against the appellant, the State, and consequently, the above claim is illegal. Moreover, since an action on the claim for injunctive relief is illegal, as stated above, it is clear that the claim for damages resulting from attorney's fees on the above claim cannot be sustained after all. B. Opinion on the Claim for Past Damages1. On the Meanings of the "Defects in the Establishment and Management of Public Facilities", etc. (Ground 5 of Jokoku Appeal)"The defects in the establishment and management of public facilities" as provided in Art. 2 (1) of the State Redress Law is not limited to cases in which physical and external defect or imperfection of material equipment itself that make up public facilities present a risk of damage to a person, but also should include cases in which there is a risk of damage to users or persons other than users when public facilities are utilized in accordance with the intended purpose and the mode or extent of use exceeds a certain limit. According to facts legally found by the court below in this case, although the Airport was established as a first-class airport and planned for takeoffs and landings by a great number of planes, its conditions such as the area and location were inferior, and to this, by allowing takeoffs and landings by many planes including jet aircraft, it was inevitable that residents in the surrounding area would suffer from harmful effects such as by noise, yet the appellant, the State, responsible for the establishment and management of the Airport allowed above-mentioned takeoffs and landings by many planes continuously, without adopting adequate measures to prevent occurrence of damages mentioned above; it being said as such, concerning the above-mentioned intended purpose (of use of public facilities), in-so-far as illegality can be affirmed as a result of balancing interests (refer to B. 3, the opinion on grounds 4.1-4 of Jokoku Appeal), it can be said that defects exist in the establishment and management of the Airport.2. On the Illegality of the Findings and Judgments relative to Injuries and Causal Relation (Ground 3 of Jokoku Appeal)(i) It is not illegal, or in violation of an empirical rule and the like, that impressions, received when the court below undertook inspections to observe the actual situation around the Airport in this case, and statements of the appellees, questionnaires, and the like, were judged to have high credibility.(ii) In the claims for damages in this case, the appellees are not seeking recovery of all tangible damages which each appellee has suffered individually, but are seeking recovery within the limit of damages which every appellee is considered to have equally suffered; such being the objective, and since such method of claims for damages could be considered permissible and in view of the characteristics of the said claims, and from the viewpoint of perceiving the substance of the extent of injuries which each appellee can be said to have commonly sustained, the original judgment cannot be said to be inappropriate because it did not mention findings and judgments of each injury in accordance with the individual situation of each appellee, and mentioned no further than general findings, and judgments, relative to the appellee's damages which is the cause of the claims. In addition, the findings and determinations of the original judgment are not injustifiable, which found all appellees to have commonly suffered from mental anguish, disturbances of sleep and daily life by the aircraft noise, as was indicated in the original court, and there was a probability the noises may be one of the causes of sickness or physical harm as purported by the appellees, and indicated in the original court, and, consequently, that all appellees have suffered from such physical and psychological effects or damages such as stress which may possibly lead to physical handicap. On this point, there is no illegality such as violation of an empirical rule.3. On the Illegality of the Findings and Judgments on Balancing Interests (Grounds 4.1-4 of Jokoku Appeal)It is clear that the public needs for the use of the Airport are fairly great considering the demand for rapid public transportation by airplane and the role of the Airport in the domestic and international air traffic network. However, according to the facts lawfully found by the court below, the number of local residents suffering injuries due to the operation of the Airport is quite large, the impact extends over a large area and the injuries are serious. And it is obvious that gains derived by these residents from the operation of the Airport do not necessarily increase when their injuries increase. Furthermore, the court below lawfully found the following facts; the appellant, the State, has enlarged the Airport, introduced jet planes and larger planes, and increased the number of flights without undertaking proper measures against predictable impacts on neighboring residents beforehand; and the appellant has not succeeded in reducing injuries in any adequate degree despite various measures which have been adopted only recently. So, it is not unreasonable for the court below to decide the use of the Airport to be illegal after considering these various circumstances altogether.4. On the Illegality in Computing the Amount of Mental Damages (Ground 6.1 of Jokoku Appeal)Considering the characteristics of the appellees' claims for each mental damage computed generally on the ground of common injuries that all appellees have suffered from, it is not unjustifiable that the court below adopted uniform standards in computing mental damages for each appellee in accordance with the location of each appellee's house and the duration of his residency there, except the court below computed different amount of each damage in view of the difference between extent of injuries that happened before B runway had started serving airplanes and extent of injuries thereafter.5. On the Illegality of the Findings and Judgments relative to the Application of the Principle of Moving to the Nuisance (Ground 4.5 of Jokoku Appeal)(i) We do not find that claims for damages of appellees who moved into the vicinity of the Airport during the period between June 1964, when the Airport began serving jet planes, and February 1970, when the B runway was put into use, should be rejected because of surroundings, prior existence, or the principle of moving to the nuisance.(ii) We do judge, by the reasons stated below, that the court below violated an empirical rule in finding and judging that there were no reasons to reject claims for damages of appellees, P1 and P2, who moved into the vicinity of the Airport after the opening of the B runway. Therefore, that part of this case should be remanded to the court below for further hearing.(a) We may not say that the so-called principle of moving to the nuisance should apply only where residents have come to the nuisance intending to take advantage of the pollution problem situation, but we think that there are cases where persons who caused the nuisance should be exempted when residents dare to accept the nuisance with the knowledge of it.(b) Though the court below found that both of the said appellees did not have any knowledge of the existence and reality of noise pollution in their residential area at the time of moving in, we can not believe, from an empirical rule viewpoint, that they moved in without much knowledge of airplane noise when we consider the frequency of takeoffs and landings at the time of their settling down, the intensity of airplane noise in the area, and the facts that the first action had been filed at that time and that main daily newspapers frequently reported the noise problem, and we can presume that they moved in accepting the injuries caused by the same or about the same degree of noise as they recognized as being inevitable. So the above-mentioned findings of the court below are illegal in violation of an empirical rule, etc.(c) In the case where both of the said appellees moved in accepting the injuries caused by airplane noise with the knowledge of its existence and where their injuries are mental anguish and interference in daily life and not those which take their lives or harm their bodies, we find, considering the public nature of the Airport, that they have to put up with the injuries except in the case where there are such special circumstances as that after moving in they have, in reality, suffered more injuries than they expected or that the noise has intensified severely. And we may not say that in the present case such special circumstances have been determined to exist.C. Opinion on the Claim for Future Damages--On the Validity of the Claim for Damages relative to the Unlawful Act in the Future (Grounds 6.2-3 of Jokoku Appeal)Even if the unlawful act is now going on and it is presumed that the same type of act will continue in the future, the claim for future damages is not valid as a claim in the action demanding payment in the future under the following conditions; it is impossible to ascertain at present whether the act constitutes an unlawful act and to what extent damages should be compensated, and it is possible to recognize the appellees' right to claim damages only after they arise actually; the victim should prove the ultimate facts, and it is unreasonable to allocate the burden to prove facts sufficient to show the nonexistence of the claim in the event of new developments to the person who caused the damage. In the present case, the illegality of the appellant's future act and the existence or degree of damage sustained by the appellees depend on such various complicated factors as the contents and actual situation of the appellant's measures to prevent or alleviate injuries, and the change of living circumstances which will happen to each of the appellees. Furthermore, as the damage should be compensated only when it exceeds the limit of victim's endurance in balancing interests, it is difficult to grasp by a clear and concrete standard the changing situation of the damage which should be compensated. So, the claim for future damages in this case should not be admitted. II Separate Opinions A. Separate Opinions on the Claim for Injunctive Relief(1), (2) Concurring Opinion by Justices Ito, Yokoi and Miyazaki Although the claim for injunctive relief as an ordinary civil claim shall not be permitted with regard to takeoffs and landings at the State-operated airports as the majority opinion states, it should be understood that residents around the Airport, whose rights and benefits were infringed by takeoffs and landings, could demand relief by means of filing a suit for revocation of each administrative disposition, such as a license from the Minister of Transportation on an air transportation business, by which takeoffs and landings concerned are allowed, or by means of filing a Kokoku-Appeal litigation whose content is dissatisfaction against the use of the Airport, considering that said usage itself, as a whole, has the nature of exercise of public power in the Administrative Case Litigation Law.(3) Dissenting Opinion by Justice Dando In view of the fact that large-scale public nuisance litigations such as this case have import on today's society and include numerous difficult problems, and in light of legislative solutions to these problems having some defects, there is considerable room, in suits of this sort, for the court to formulate laws in a positive manner by decisions in accordance with the characteristics of said suits, and moreover, the court should do so. Considering from such a standpoint, even if it is not necessarily clear whether an administrative suit is allowable or not with regard to the claim for injunctive relief in this case, now that the appellees filed suits, selecting the means of civil suits, the court should affirm their validity, if possible, and should give full consideration in the interpretation of their suits in order not to close the means of relief to the victims. Since the substance of State's activities with regard to public facilities is not an authoritative action and it is not understood that the positive law vests the managing body of public facilities with a position predominant over a third party, other than users of public facilities, nor that the positive law obliges such a third party to endure restrictions on rights and freedoms caused by the use of public facilities, it should be understood that such a third party can demand an injunction against the above usage by means of a civil litigation or a party litigation based on public law. In respect to other refutation to the majority opinion, I completely concur with the (5) dissenting opinion by Justice Nakamura.(4) Dissenting Opinion by Justice Tamak i Since today's social demand for adjustment and maintenance of traffic and transportation by an air liner is big and main airports indispensable to the business activities of regular air transportation are to be constructed by State or a public corporation correspondent to State, and to be used for the above business proprietors, although the operation itself of scheduled aircraft is conducted by activities of business proprietors of regular air transportation business, which are private enterprises, it can be said that, both State and the above business proprietors are running, so to speak, a joint undertaking for the common purpose of offering people such public benefit as means of transportation by scheduled aircraft, and such regulatory actions by the Minister of Transportation toward business proprietors should be considered to be rather mere matters having to do with the inner relation between business collaborators in the course of coming to an agreement. As the use of the State-operated airports is one aspect of the above business activities, it is not suitable to consider the use of the State- operated airports as an authoritative action of State in relations with people in general. In addition to this, since it is understood that the claim for injunctive relief in this case is the demand supposing the assertion that the use of the Airport by State constitutes an unlawful act against the appellees, and that both Article 17 of the Constitution and the State Redress Law provide that State or a public body and the victims are on an equal footing with regard to an unlawful act of a public official, the claim for injunctive relief in this case should be said to have the substance of a civil claim, and consequently, I cannot agree with the majority opinion which denies the above conclusion (but if I dare say, about the substantive right or wrong of the above claim, I think it is difficult to admit the above claim in this case, completely, for it is hard to say that there is a possibility that present damages may occur continuously in the future).(5) Dissenting Opinion by Justice Nakamura It is not necessarily clear whether the majority opinion considers that, since the use of the Airport by the Minister of Transportation acting as a managerial organ of the Airport is the exercise of power of administrative regulations or the exercise of public power, it is not allowed to demand an injunction against the above usage by means of a civil suit, or it considers that, since the above usage has indivisible relationship to other disposition actions concerning takeoffs and landings by the Minister of Transportation acting as an exerciser of authority of administrative regulation, it is not allowed to sever the above usage by itself alone, from the above other disposition actions and to make the above usage an object of the claim for injunctive relief as an ordinary civil claim. However, in either case, I cannot agree with the majority opinion. That is, it seems to me that the above first interpretation of the majority opinion considers that this case corresponds to a case where the law specially provides that the decision for usage by the managing entity of an airport has the nature of exercise of public power in relation with a third party, as well, assuming the opinion that permission or rejection of the use of public facilities by the managing entity of public facilities does not generally have the nature of exercise of public power in relation with a third party other than users of public facilities, but the majority opinion only states, as the reason for such understanding, that there is the need to unify decisions of policies on aviation administration and their enforcement, which is the general purpose or the objective of nationalization of main public airports. However, since the above purpose or objective has already been accomplished to some extent by entrusting the Minister of Transportation with each judgment or decision of intention on both the function to regulate on aviation administration and the use of the State-operated airports, in order to understand as does the majority opinion, we cannot help understanding that after all, the Minister of Transportation acting as an organ of aviation administration is vested by the law with authority to determine how many flights will be concretely realized by balancing the public nature of air transportation with disadvantages that a third party such as residents around the Airport will receive by activities of flights, and that the above determination has the nature of exercise of public power by which he can compel a third party to endure the above disadvantages. But, as there is no reason in laws and ordinances why the present law vests the Minister of Transportation with power of determination having such a binding force, I cannot agree with the above interpretation. Next, when I consider the second interpretation of the majority opinion, it seems to me that there must be the nature of inseparability between disposition of permitting flights as the exercise of authority of administrative regulation and the use of the Airport in the sense that there is a restriction that the managing entity of the Airport cannot reject the use of the Airport necessary for flights now that disposition of permitting flights has been made, in order to say that the claim for injunctive relief in this case includes the claim for revocation or alteration of disposition of permitting flights. But there is no ground in the present laws to understand that disposition of permitting flights has such a restriction for the managing entity of the Airport. And disposition of permitting flights does not have an effect of legalizing flights in relation with a third party such as residents around the Airport, as stated above, with regard to the first interpretation, and therefore, the managing entity of the Airport can reject the use of the Airport by reason of objective illegality of flights in relation with such a third party in spite of the above administrative disposition, and should do so. Indeed, the managing entity of the Airport is forced to reject the above usage by a judicial decision, as a result, he cannot permit flights including takeoffs and landings at the Airport, but this is no more than an effect incidental to the above judicial decision or a reflective effect of the above judicial decision. So, it cannot be said that the claim for an injunction against the above usage restrains the exercise of authority of administrative regulation and that the above claim involves the claim for obliging the above entity to exercise the above authority.(6) Dissenting Opinion by Justice Kinoshita The authority of State to occupy and use the Airport is not necessarily different from the authority for usage based on the title in a private law such as ownership. Although there is a regulation by the authority of aviation administration on the use of the Airport, the authority of aviation administration is the one to regulate operation of the Airport based on the authority for usage having the above nature, and therefore, it should be considered as being legally different from the above authority for usage. And since the claim for injunctive relief in this case is the claim upon State acting as the subject for establishing and managing the Airport for an injunction against the use of the Airport based on the above authority for usage, the position of State acting as the subject of authority of aviation administration should not be taken into consideration with regard to determination of validity of the above claim. Considering from effects of a judicial decision that admits the above claim, such a decision does not directly restrain the exercise of authority of aviation administration, neither does it oblige the subject of the above authority to exercise the above authority, and therefore, in this point, I agree with the pertinent statement in the (5) dissenting opinion by Justice Nakamura. According to the above reason, I cannot agree with the majority opinion that considers the claim for injunctive relief in this case as illegal. B. Separate Opinions on the Claim for Past Damages(7) Concurring Opinion on Ground 5 of Jokoku Appeal by Justices Hattori, Ito, Miyazaki, Terada and Taniguchi The use of the Airport by planes has the characteristics of exercise of management authority of facilities at one aspect. The relation between the said exercise and the exercise of aviation administration by the Minister of Transportation is inseparable in the question of the claim for injunctive relief. However, concerning the claim for damages, in which the above-mentioned two kinds of exercises are able to be considered separately, there is no specific problem to affirm the claim for damages considering an aspect of the exercise of the said management authority. We conclude, therefore, that it is possible to affirm to apply Art. 2 (1) of the State Redress Law to the use of the Airport.(8) Opinion on Grounds 5 and 3.3 of Jokoku Appeal, Concurring Opinion on Grounds 4.1-4 and Opinion on Ground 6.1 by Justice Tamaki On Ground 5 of Jokoku Appeal As mentioned in my dissenting opinion on ground 1 of Jokoku Appeal, the appellant, the State, as the authority for establishment and management of airports, is a quasi-joint-enterprise for air transportation by scheduled planes. The Airport is one point of a network of national and international airways and the extent and method of use of the Airport by planes has been decided by the above entire enterprise-management. Therefore, the use of the Airport should be considered as a part of the enterprise activity throughout the nation. I do not consent to the majority opinion that says the use of the Airport is management action of a specific airport. Law that should be applied to the claim for damages is Art. 1 (1) of the State Redress Law. It is not adequate that the court below applied Art. 2 (1) of the above-mentioned Law. However, in this case, the judgment of the court below should not be reversed despite the said error. Consequently, the appellant's assertion on this point should be denied because it censures the judgment that contains an error which exerts no influence on the conclusion. On Ground 3.3 of Jokoku Appeal When noises and exhaust fumes emitting from human activities are diffused into the atmosphere to such great extent that it can be said, as a result, air pollution appears all over that area, and in addition, a great number of residents of the area actually suffer from concrete and individual injuries because of the said pollution, then the area can be considered to be surrounded with a certain risk. The risk itself should be a disadvantage, which is different from concrete injuries that each resident suffers from, which is entitled to an object of the tort relief. I conclude the injuries that appellees assert in this case mean the above-mentioned environmental pollution itself. Accordingly, presupposing that aircraft noise has occurred in the atmosphere where there is no barrier, afterward noise reaches all over the residence area of appellees, and also, appellees equally suffer from the risk of environmental pollution, it should be sufficient for appellees to prove just the characteristics, contents and extent of the above-mentioned risk. It is not necessary for them to prove their injuries individually. There is no illegality in the court below that did not find the individual injuries. On Grounds 4.1-4 of Jokoku Appeal As I mentioned in my opinion on ground 5 of Jokoku Appeal, we should grasp the said act of the National Government from the viewpoint of one of the nation-wide activities of the Government, not just from the viewpoint of the "defects in the establishment and management" of the Airport. And, we should set the limit of legality of mutual acts by balancing various interests of both parties, because the essence of the disputes in the present case is found in the conflicting outcome of both parties' acts which are thought to be legal in substance. I agree with the majority opinion which approves the judgment of the court below, because the court below decided the act of the National Government illegal after balancing interests in practically same manner as my above-mentioned opinion, although it balanced interests from the viewpoint of the "defects in the establishment and management" of the Airport. On Ground 6.1 of Jokoku Appeal As mentioned in my opinion on ground 3.3 of Jokoku Appeal, I conclude that the injuries of appellees are nothing but a risk itself of environmental pollution. In addition, computing the amount of damages, as computing an amount of damages for nonpecuniary losses, should be computed correspondingly by the method of computing mental damages. Accordingly, it is not adequate to compute the amount of the damages considering the individual situation of each appellee. The view on this point of the court below is different from my view at the basic standpoint, however, it should be affirmed.(9) Dissenting Opinion on Grounds 5, 3 and 4.1-4 of Jokoku Appeal and Concurring Opinion on Ground 6.1 by Justices Kurimoto, Fujisaki, Motoyama and Yokoi On Ground 5 of Jokoku Appeal The defects in the establishment and management of public facilities as provided in Art. 2 (1) of the State Redress Law should mean a lack of safety of material equipment of public facilities. However, the inferior location of the Airport and the imperfection of measures to abate noise coming from continuous use by many planes which were indicated as defects of the establishment and management of the Airport in the judgment of the court below do not mean that the material equipment of the Airport lacks the characteristics or equipment ordinary provided as an airport used by planes, but evaluation after considering that the Airport has been designated as a first-class airport and also used by a great number of planes including jet aircraft, in addition measures to prevent or abate injuries coming of that situation have not been properly undertook. In short, that is the question of illegality in the aviation administration or the airport management. That is not the question of the risk coming of material equipment itself of the Airport. Therefore, we find that the judgment of the court below which held these were defects in the establishment and management of the Airport because of the point indicated previously contains a mistake in the interpretation and application of the law. On Ground 3.1-2 of Jokoku Appeal The judgment of the court below, on existence and extent of injuries and existence of causal relation between aircraft noise and the injuries which is one of the major issues in this case, evaluated statements of appellees and questionnaires submitted as exhibits by them were important credible evidences. The court affirmed existence of the injuries and the causal relation without objective corroborating evidences. However, because of the characteristics of the statements and questionnaires, the said evaluation of evidences exceedingly lack rationality and also the findings of facts of the court below violate the evidence rules. On Ground 3.3 of Jokoku Appeal The judgment of the court below affirmed the claim for mental damages considering that mental anguish, many kinds of daily inconveniences and a risk of physical harm are common injuries to all appellees. However, on concrete contents of the said common injuries, the court indicated only the category of injuries without making their contents and extent clear. Furthermore, if the risk of physical harm which is mentioned as one of the common injuries by the court would be actual injuries by interpreting that the risk means physical and psychological influence based on the risk, it is necessary to clarify the situation of actual physical harm on objective evidences such as medical examination by a professional, in addition, prove causal relation between physical harm and aircraft noise by a so-called method of epidemiology. Nevertheless, the court below not only found the above-mentioned actual injuries without being based on the said objective evidences, but also judged the existence of causal relation between some sort of physical harm, a risk of which the court found, and aircraft noise without adequate evidence. In the points mentioned above, the judgment of the court below made an illegal mistake of violation of an empirical rule and imperfection of reasons. On Grounds 4.1-4 of Jokoku Appeal While the claim for damages in the present case is based on the injuries common to each of the appellees, the court below, as we mentioned above, affirmed the illegality of the use of the Airport without finding the contents and extent of the common injuries clearly. However, we do think that the said method of the court below of judging illegality is not approvable, because the illegality of harmful acts should be decided individually according to the correlation between the contents and extent of injury and the contents and nature of causes of the harm where the injury arises from a permissible activity. And, the illegality should be decided individually through balancing the contents and extent of injury of each of the victims and the public nature of the use of the Airport. In this sense it is unreasonable to decide the illegality uniformly. Where the injuries arising from the National Government's activities which are of public nature to a high degree are such nonpecuniary losses as mental anguish and interference in daily life and where the injuries are not severe ones which will cause physical injuries, it is reasonable to understand that the injuries are within the limit of endurance and that the claim for solatium should not be admitted. Although the management of the Airport by the appellant, the State, is an enterprise of highly public nature, the court below neither examined nor decided the existence of the injuries which exceeded the limit of endurance from the above-mentioned viewpoint. The facts found by the court below cannot sustain the existence of such degree of injuries. In short, there are errors in interpretation and application of law and defects in reasoning in the judgment on the illegality of the court below. On Ground 6.1 of Jokoku Appeal We do not consent to the part of the majority opinion on the above-mentioned ground of Jokoku appeal that presuppose the finding of the court below concerning appellees' injuries is legal. However, we have the same opinion as the majority opinion in the view that the mode itself of computing mental damages the court below adopted is not illegal.(10), (11) Concurring Opinion on the Matters concerning Appellees, P1 and P2, in Ground 4.5 of Jokoku Appeal by Justices Terada, Kurimoto and Taniguchi As a price or rent is to reflect factors which set the value of a house, those who have bought or rented houses, as a general rule; acknowledge those factors. The existence or degree of noise pollution in the surroundings would be included in those factors. Much more, in the case where injuries caused by noise pollution have become a sort of social problem because they have arisen in the considerably wide area and for a long time, it is reasonable to presume in fact that those who moved in and have lived in the area for a considerable time did, and have done so, with some knowledge of the situation of injuries. With these considerations, we agree with the majority opinion which concludes that the findings of the court below contained illegalities in violation of an empirical rule (Especially with regard to appellee, P2, the court below did not hear the case sufficiently on this point.)Even if both of the said appellees did not know the situation of injuries when they moved in, we do think that they were negligent because injuries caused by noise pollution in this area had become a sort of social problem as stated above. And in the present case, where the infringement arises from the use of the Airport, which is of a public nature, and injuries are only mental ones, we should consider their negligence in computing the amount of mental damages, in comparison with other appellees who had moved in before. So we dare not say that it is illegal, but we do not think that it is adequate that the court below rejected the argument on contributory negligence.(12) Dissenting Opinion on the Above-Mentioned Subject by Justices Dando, Nakamura, Kinoshita and Ito The majority opinion states that the finding of the court below that appellees, P1 and P2, came to know the severity of airplane noise only after they moved into the surroundings of the Airport is illegal in violation of an empirical rule, and points out, as the ground of the judgment, the frequency and degree of airplane noise in the area at the time when the appellees moved in and the facts that the first action had been filed at that time and that newspapers frequently reported the noise problem in the surroundings of the Airport. However, owing to the frequency of airplane noise (normally only landing planes fly over the area) it is difficult to conclude that at the on-site investigation before settling down, appellee, P1, ought to have had the opportunity of being exposed to noise produced by a flying jet plane (especially a large one). In addition, those who filed the first action were residents of Kawanishi City, where the said appellee does not live. With regard to the reports of newspapers, we can assume that the said appellee, who had no special relation to Hanshin District and accordingly did not feel much interest in this matter, was not aware of the contents of the reports clearly, or did not realize that the noise problem arose in the area where she was going to move into, for lack of knowledge of this district. After all, we do not find that the said appelle's testimony, the only one direct evidence concerning her knowledge, that she was not aware of airplane noise before settling down, cannot be believed according to an empirical rule. Moreover, from many appellees' testimonies in the courts below, it is not difficult to concede that the said appellee could not grasp the actual condition of injuries caused by noise pollution which occur frequently day and night, even if she had the opportunity to encounter jet plane noise at the on-site investigation. Appellee, P2, is in a little different situation, but, roughly speaking, so far as the existence of aircraft noise or the recognition and forecast of it are concerned, what we stated above applies to appellee, P2.Even if both of the said appellees had not investigated sufficiently, under the circumstances of the present case we do not think that their claims should be rejected for it, and we can not decide it illegal for the court below not to take their faults into consideration in computing the amount of damages. Therefore, we disagree with the majority opinion, and we do think that the appellant's argument on the matters concerning both of the said appellees should be rejected.(13), (14) Supplementary Dissenting Opinion on the Above-Mentioned Subject by Justices Kinoshita and Dando The majority opinion states that in the case where appellees, P1 and P2, moved in accepting the injuries caused by airplane noise and where those injuries have not taken their lives, nor have they been bodily injured, they should put up with the injuries except in the case where there are such special circumstances as that (1) after moving in they have suffered more injuries than they expected or that (2) noise has intensified severely after they moved in. And the majority opinion concludes that in the present case such special circumstances have not yet been decided to exist. However, with regard to the matters of the above(1), from the frequency of landings we can assume that at the on-site investigation before settling down, both of the said appellees did not encounter a jet plane flying over, which (especially a large one) produces very strong noise, and in consideration of the special features of airplane noise that it is easily affected by such conditions as the flight route, weight of the airplane, and weather, we cannot assume that they could realize the actual extent of airplane noise by such a short time observation even if they had encountered it. With regard to the matters of the above(2), according to the facts found by the court below, it is clear that the number of takeoffs and landings of jet planes, especially large ones, has greatly increased after their settling down for less than two years. Therefore, only from the facts found by the court below, we can affirm the existence of facts which come under the special circumstances of the above 1 and 2. Accordingly, even if it is to be presumed that both of the said appellees moved in, accepting a certain degree of injuries, we should allow their claims to the extent of damage which they did not accept but have actually suffered.(15) Dissenting Opinion on the Above-Mentioned Subject by Justice Tamaki As previously stated, I think that in the present case, we should consider the harm of environmental pollution itself as damage, and then, on the premise that there exists such damage, we should balance interests to judge illegalities. Therefore, because I cannot find any reasons for deciding it illegal for appellees, P1 and P2, to begin to live on their properties with titles, which is in the area where pollution has existed and to which the National Government has no title, I do not think that the allowance of their claims for damages depends on whether or not they had the knowledge of environmental pollution at the time of moving in, but I do think that, as the case may be, those factors may be considered only what put restrictions on the exercise of their claims because of the abuse of rights, etc., or their disadvantages in computing the amount of damages. In the present case, even if the finding of facts on their knowledge of the court below was illegal in violation of an empirical rule and we should presume that they moved in with the knowledge of pollution, etc., it is absolutely unjust to reject their claims on the ground of violation of the clean hands principle mainly because of their knowledge. And we do not think it unreasonable for the court below not to take it into consideration in computing the amount of damages. For the reasons stated above, I do not agree with the majority opinion. C. Separate Opinion on the Claim for Future Damages(16) Dissenting Opinion by Justice Dando Article 226 of the Code of Civil Procedure does not prescribe only that one can bring an action demanding payment in the future based on the claim subject to a time of commencement or to a condition. Where a factual basis from which a claim for damages would arise has continued and where it can be established that the same situation will surely continue into the future, there is room for admitting an action demanding payment in the future based on the said Article after considering such factors as the objective with which legislators made the said Article, the extent of res judicata effects and the balance of both parties' interests. In the present case, where the damage has been arising continuously from the "defects in the establishment and management of the public facility", the court may admit the claim for future damages on such portion of the damage as is accurately predictable. But it is a reversible error that the court below admitted the claim for future damages without fixing a clear and adequate time of termination. It is reasonable for the court to admit the claim by fixing a time of termination by means of estimating the period in which the predictable damage will surely continue to arise. While the appellant must seek to enjoin further execution of the judgment in the event of any special developments, it would not punish the appellant unfairly. And problems on the extent of res judicata effects can be solved by fixing the said time of termination. For reasons above mentioned, I do not agree with the majority opinion, that the claim for future damages in the present case is invalid.