A recent series of court rulings have found the state responsible for the health damage caused to construction workers who were exposed to asbestos dust. In its ruling last month on one of the damages suits filed by former construction workers and their relatives, the Osaka High Court determined that the government was able — by 1975 at the latest — to recognize the concrete risk of construction workers contracting illnesses linked to asbestos and accused the state of failing to exercise its regulatory power to protect their health, such as requiring them to wear masks to prevent them from inhaling asbestos fibers.
It appears the judiciary decision on the issue has been established — given that the government has been held liable for the health damage in 10 rulings by district and high courts. Still, the government continues to dispute its responsibility. It rejected a high court recommendation for a settlement in one of the rulings earlier this year, and appealed the Osaka High Court ruling last month to the Supreme Court. The government needs to realize that time is running short for the plaintiffs, many of whom are aging and ailing, and explore ways for settling the cases out of court, such as by creating a joint fund with construction materials makers and other parties to provide relief for the victims.
Asbestos was widely used as low-cost and fire-proof construction and heat-insulation material, particularly during Japan’s postwar rapid economic growth period. However, inhaling its tiny fibers — each roughly one-5,000th the breadth of a hair — while cutting the materials at construction sites and spraying it on walls and ceilings exposed the workers to the risk of contracting such illnesses as lung cancer and mesothelioma. It takes decades for the symptoms to emerge after inhaling asbestos dust — the reason why many of the plaintiffs in the damages suits filed in recent years across the country are aging. About 70 percent of the more than 700 former construction workers who sued the government and construction materials makers have already died. The plaintiffs are calling for relief while the workers are alive.
The responsibility of the materials makers for the workers’ illnesses, which was initially dismissed by the courts, has also come to be recognized in recent rulings since the 2016 decision by the Kyoto District Court. Since many of the construction workers move from one site to the other — making it difficult to identify which maker’s products harmed their health — the courts determine the responsibility of each materials maker on the basis of its market share and the period when it was making the products.
The government has already provided relief to victims of asbestos-linked health damage other than construction workers. Following the Supreme Court order in 2014 for the state to pay damages to people who worked at asbestos plants in Osaka from the 1950s to 1970s and their relatives for the illnesses they sustained after inhaling asbestos dust at the plants, the government created a program to settle the cases and provide them with relief. However, it has maintained that asbestos-related health damage to people who worked at outdoor construction sites is a “different issue” and disputed their calls for state compensation.
In the series of rulings on the suits filed by former construction workers since 2012, the Yokohama District Court turned down their demands for damages from both the state and the materials makers. However, subsequent decisions by district courts in Tokyo, Fukuoka, Osaka and Sapporo found the state liable for damages to the former workers and their bereaved relatives. The Kyoto District Court in 2016 for the first time found the materials makers responsible for the health problems — a decision also followed by the Yokohama District Court as well as Tokyo and Osaka high courts. The Osaka High Court ruling last month determined that the construction materials makers, along with the government, were able to foresee the risks of health impairment caused by their products.
When the Osaka High Court recommended a court-mediated settlement of the suit, the government rejected the idea and the makers named in the case did not respond in time for the talks to go on. But given that the state’s responsibility has been determined in so many court rulings, it seems unlikely that the Supreme Court would rule otherwise. It is time for the government to work with other parties in the lawsuits to explore out-of-court ways of providing relief to the plaintiffs.
Even today, there are said to be about 2.8 million buildings using construction materials containing asbestos across the country — and their demolition will reach a peak in the future. Measures must be taken to protect the health of workers involved in the demolishment of such buildings to ensure they’re not exposed to asbestos.
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