"Risk Analysis in the Courts: A Roadmap for Risk Analysts"
Menu of 1998 Full-text Online Casebook
Poster 20
OUTSIDE THE UNITED STATES
Protection of Environmental Interests In Japan and Canada
JAPAN
I. The Legal Framework of Japanese Law
A. The Principle of the Law of Negligence
Public nuisance is a class of torts which the Japanese courts formulated under section 709 of the Japanese Civil Code. Section 709 provides that a person who intentionally or negligently caused a loss to another shall be liable for damages. If the water in a river is polluted and the person liable for this pollution can be identified, then the injured may bring an action for damages under the said section. Using this sort of legal logic, the law of public nuisance has been developed and incorporated into the law of torts, especially the law of negligence.
In the litigation which seeks the protection of environmental interests, the plaintiff must prove:
* injury was caused by an intentional act or negligence of the defendant,
* loss was caused to the plaintiff,
* such an act or negligence cannot be justified by law, and
* the cause, i.e. such an act or negligence, has reasonable relation to the resulting loss.
Section 719 of the Civil Code provides for joint torts, and therefore, if defendants jointly committed the wrongful act, they shall be jointly and severally liable for damages.
The Basic Environmental Law of Japan of 1993 more specifically illustrates 7 types of environmental harm: air pollution, water pollution, soil contamination, noise, vibration, ground subsidence, and offensive odor. These matters are more specifically regulated by relevant statutes.
B. Proof of Causation
Among the above four requirements of the environmental litigation, proof of causation is technical and most important. In the light of the courts' decisions, which shall be explained below, scientific truth need not be proved. Causation in law means reasonable relationship in the light of common sense. Thus, even where causation cannot be proved by clinical medicine or pathology, it can be proved by epidemiological knowledge. In the particular case of product liability litigation, the courts are willing to admit the existence of causation, if the defect in a product is proved and the loss was caused, and if there is a strong probability that the latter was due to the former in the common sense.
II. Leading Cases
The above legal framework can be explained much more clearly through illustration using the leading cases. It should be noted, however, the number of relevant cases exceed 100 in number, and thus the following illustrations are only a few which the present authors believe to be significant.
A. Minamata Disease Cases
The first group of cases concerns water pollution. The defendant in the Kumamoto case was a manufacturer of acetaldehyde who had continuously discharged waste water containing methylmercur compounds into an adjacent river which leads to the Minamata Bay. The accumulated methylmercury in residents' bodies had caused toxic neuritis since 1953.
The Kumamoto District Court rendered a decision on March 20, 1973 [Hanrei Times no. 294, p.108], holding that the defendant company is obligated to confirm the safety of the water which they discharge into the river with the best knowledge and technology and to take measures to ensure that this Safety is maintained. The Court found that the existence of the casual relationship between the water discharge and the resulting disease (normally called the Minamata disease) had been established.
The second litigation of the same group is call the Niigata Minamata case. The nature of the case is essentially the same with the above‑mentioned Kumamoto case. Here, the disease was caused by the fish caught in the River at Niigata Prefecture. The defendant insisted that the methylmercury compound was due to agricultural chemicals which flowed out from store house at the time of the big Niigata Earthquake. The Niigata District Court rendered a decision on September 29, 1971 [Hanrei Times no. 782, p.260], and held that the defendant company should be liable unless it could scientifically prove that the cause was actually due to agricultural chemicals. This decision has been a strong basis to support strict liability against companies, because the burden of proof is shifted from the plaintiff to the defendant.
B. The Itai‑itai (pain‑pain) Disease Case
There was another group of people who took crops, drinking water (river water and underground water), and fish in Toyama Prefecture and suffered from the Itai‑itai (pain‑pain) Disease, whose nature was known for some time. The injured and the bereaved family brought this litigation against the Kamioka Mining Factory, alleging that the strange disease had been caused due to the water containing cadmium, which had been discharged by the defendant from 1910 to 1945. The Nagoya high Court finally rendered its decision on August 9, 1972 [Hanrei Times no. 280, p.182], and held that if epidemiological relation is proved the court can find that causation has been proved. See section 109 of the Mining Act of 1950.
C. Yokkaichi Case
This case is concerned with air pollution. In the city of Yokkaichi, Mie Prefecture, the chemical industrial complex produced air pollution which caused asthma in its neighboring residents. The complex consisted of six companies, and without identifying which company or in what way the asthma was caused, the District Court held that there existed epidemiological causation between the discharge of sulfuroxide by the complex and the asthma, and rendered its decision on July 24, 1972, in favor of the injured residents and their bereaved family.
III. Judicial Review
Until the Administrative Procedure Act was enacted in 1997, judicial review of administrative action was strictly limited under Japanese law. Private citizens did not have standing to sue. This is the reason why most court decisions referred to in the preceding chapter are private litigation under section 709 of the Civil Code. However, under the present Japanese law, the injured party not only can sue the State or local governments as the actor of the wrongful act under section 709, but can also sue for judicial review of environmental administration. The basis for this administrative or constitutional litigation is either article 13 of the Japanese Constitution (the individual right to the pursuit of happiness) or article 25 of the same (the peoples right to civilized living), or both. The State Liability Act of 1947, section 1, provides for the duty of the State or local governments to maintain safe facilities, constructions, buildings, and other public property (including river, sea, etc.), and this can be used as the basis for litigating the State or local governments on the grounds of its or their inaction to maintain safety standards. For instance, a river in Gifu Prefecture, for which the State is responsible, was flooded by a typhoon and the State was held to be negligent in examining the river bank and in taking appropriate measures to prevent such a flood.
IV. Criminal Liability for Causing Environmental Risk
Section 211 of the Criminal Code provides for the crime of bodily injury caused by the negligence of the accused in the course of conducting its ordinary business or task. In the Kanemi case, the head of a factory which was producing soya sauce and the official whose duty it was to supervise the head were accused for the crime on the grounds that they failed to detect small holes through which poisonous oil permeated into the soya sauce. Using the same logic, the responsible persons of the Minamata were accused for their failure to stop the discharge of hazardous water.
Generally speaking, it is normally difficult to convict the accused in this sort of case because the proof of their intention is very difficult. As a result, the Japanese Parliament passed a statute in 1970 in relation to offenses of public nuisance in connection with business activities at a factory or other working place. This statute is designed for the higher degree of protection of the human body from environmental risk. [Tammoto Katuda, Ikeda]
CANADA
*See Bench, Bar, and Lab Survey, Poster Nos. 12a & 12b
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John Applegate and Wendy Wagner.
Last modified September 27, 2000