Addressing workers’ health damage from asbestos

In the first high court ruling on a damages suit filed by former construction workers over illnesses caused by exposure to asbestos, the Tokyo High Court last week ordered the government and four building material makers to pay compensation to 62 plaintiffs. In so doing, it overturned a lower court decision that cleared both the government and the firms of liability. Nine years have passed since the first of a series of lawsuits was filed by former construction workers. Given the extent of the health damage from asbestos sustained by construction workers, the government should craft a new program to provide relief to the victims, many of whom are aging and ailing.

Asbestos is a mineral consisting of fibers whose diameters is about one-five thousandths that of a human hair. Due to its low cost and heat-resistant nature, it was widely used in building material during Japan’s postwar period of rapid economic growth. But it came to be known that the inhalation of asbestos dust can cause lung cancer or mesothelioma. Health damage from asbestos is often likened to a time bomb because the incubation period of the diseases caused by asbestos can last for decades. Victims usually die several years after the symptoms emerge. From fiscal 2012 to 2016, about 5,000 workers were recognized as victims of occupational hazards caused by exposure to asbestos. About half were construction workers who worked with building materials containing asbestos.

Since 2008, former construction workers have filed 14 lawsuits against the government and firms that manufactured and sold building material containing asbestos, and rulings have been handed down by seven district courts. Except for the 2012 Yokohama District Court decision that was reversed by the high court last week, six district court rulings ordered the government to pay damages. Two also found building material makers liable for compensation.

In the case that went to the high court, a total of 89 former workers — who had worked at construction sites for decades since the 1960s — or their bereaved relatives demanded ¥2.9 billion from the government and 43 companies. The court ordered the government and four of the firms to pay ¥370 million to 62 plaintiffs. The ruling said the government should have known the health risks posed by asbestos by around 1980 and determined that the state should have made it obligatory for construction workers to wear filtration masks by 1981.

The four material makers were ordered to pay the damages on the strength of the high probability that their products had been used at construction sites because of their market share. During the appellate trial, the companies insisted that it cannot be known which specific products caused health damage to which individual plaintiffs. While the government’s liability for health damage sustained by the construction workers appears to have been established by the judiciary, courts remain mixed on the responsibility of building material makers to pay compensation.

Also at issue is the question of compensation for self-employed laborers who worked at construction sites. The high court cleared the government of having to pay damages to these people on the grounds that they cannot be deemed “workers” under labor laws. However, it should be questioned whether the legalistic treatment of these people — who engaged in the same work at construction sites as other workers and suffered the same health damage — by the courts stands to reason.

Among people who sustained health damage from exposure to asbestos are those who worked at asbestos manufacturing and processing plants. Since the Supreme Court in 2014 determined that the government was responsible for the asbestos pollution affecting plant workers in Osaka Prefecture, the Health, Labor and Welfare Ministry has indicated its willingness to pay damages to former asbestos plant workers if they take their case to court.

With regard to construction workers, however, the government continues to dispute its liability for compensation. Given that many of these workers move from one construction site to another over many years, it is difficult to determine which building material makers’ products caused their health damage. But the way in which they sustained the health damage from exposure to asbestos is no different. Many of the plaintiffs are aging and dying from the illnesses caused by asbestos — of the 75 patients who took part in the lawsuit that went to the high court, 56 have already died.

The law for relief for health damage caused by asbestos, which took effect in 2006, provides medical assistance allowances to victims. But the allowances and the scope of the law’s coverage are criticized as being insufficient. There are calls for establishing a new relief scheme, which should involve funding by the government, building material makers and construction companies to help former construction workers, including self-employed workers, suffering from asbestos-caused illnesses. Such a step, if it is to be taken, should be taken quickly, since time is not on the side of the victims.