Japan – Good News, Bad News
On June 1, 2010, the Japanese Government filed an appeal against a May 19, 2010 judgement handed down by the Osaka District Court which had held the national authorities liable for asbestos-related diseases contracted by former workers. Judge Yoshihiro Konishi's verdict awarded 430 million yen ($4.6m) for injuries sustained by 26 claimants occupationally exposed to asbestos in the Sennan district of southern Osaka Prefecture.1 The Judge ruled that the Government's continued failure to mandate the implementation of protective measures made it liable for the damage caused. “The central government also failed to provide people with the appropriate information concerning asbestos and the health risks linked to it,” the Court said.2
Commenting on this case, Japanese lawyer Kuniko Kobayashi wrote:
“This is the first judgment (in Japan) which ruled that the government had been aware of the health hazard of asbestos by 1959, and had to enact regulations which imposed the duty to install local exhaust ventilation at the point of 1960… the court declared the negligence of the government as a regulator. “3
The outcome of this case is important not just for these plaintiffs but for others whose cases are progressing through the judicial systems in Tokyo, Yokohoma and Kobe. Considering that 10 million tonnes of asbestos were used in Japan and that scientists predict that more than 100,000 asbestos deaths will occur by 2050, there are likely to be many more cases. Konishi's verdict could also impact on the ongoing consultation over the provision of government relief measures to asbestos victims;4 monthly allowances of 100,000 yen ($1,084) for treatment expenses and other benefits have been criticized as “grossly inefficient.”5
Yeyong Choi, a spokesperson for the Asian Ban Asbestos Network, believes the judgment has a significance which transcends the Japanese border. Particular aspects of this verdict which he highlighted in a report circulated on May 26 included:
- the state's guilt for failing to take timely and appropriate action could equally be applied in other Asian countries which continue to allow the use of asbestos and fail to implement protective measures;
- the closure of small and medium sized companies over a period of thirty to forty years (the latency period for asbestos-related diseases), means that when former workers get sick they are often left high and dry; it is appropriate for the government to take the place of defunct negligent employers;
- the level of compensation awarded against the state by the Osaka court is equal to that awarded against corporations.6
Considering the huge repercussions of this judgment it was likely the government would consider every available option. A Japanese observer reports that opinion amongst various ministries was divided with the Minister of Health, Labor and Welfare and the Minister of Environment opposed to the appeal while the Minister of Justice, Minister of Finance and Minister for National Policy were in favor. In the end, it fell to the Minister for National Policy Yoshito Sengoku to announce the Government's decision. In his statement, Sengoku referred to numerous points of contention in the judgment and said that as the claimants had already received payouts under the labor accident compensation insurance scheme, additional payments were unwarranted.
Japanese asbestos victims, their lawyers and campaigning groups will continue to protest at the double victimization of the injured; in the first instance they were exposed to a known carcinogen, and then they were refused the compensation and support they deserved. The battle is not over.
June 3, 2010
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1 Many of the claimants argued that they did not have realistic chances of obtaining compensation from their former employers, the majority of which had been small businesses.
2 Govt needs to get serious about asbestos. May 21, 2010.
http://www.yomiuri.co.jp/dy/editorial/20100521TDY02T05.htm
3 Email to Laurie Kazan-Allen. May 20, 2010.
4 Osaka court orders gov't to pay damages for asbestos exposure. May 20, 2010.
http://mdn.mainichi.jp/mdnnews/news/20100520p2g00m0dm041000c.html
5 Editorial: Asbestos damages suit. May 21, 2010.
http://www.asahi.com/english/TKY201005200372.html
6 Email from Ye-yong Choi, received May 26, 2010.
