Lecture on Tort law
KAGAYAMA Shigeru
Emeritus Professor of Nagoya University
and Meiji Gakuin University

 Introduction

Frequency of the application of tort law by
Japanese courts
Two types of tort law in the world
A metaphor of an electric circuit
Tort in generalSpecial torts

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Self-introduction
 I am an emeritus professor of Nagoya University andMeijigakuin University in Tokyo.
 13years ago, however, I was a professor of Nagoya
University.

 During these periods I was going to Asian countries, State ofMongolia, Vietnam, Cambodia, Laos, Uzbekistan and China
to cooperate development of civil law.
 Fortunately, these activities were evaluated from thisuniversity, I became to an emeritus professor of Nagoya
University in 2008.

 So, I am both an emeritus professor of Meijigakuin
University and Nagoya University because emeritus
professor is life long post.

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Table of contents
 Introduction

 2 types of tort law system
 French type(since1804)
 German type(since 1900)

 (link) Judgment of Supreme
Court, 13 March, 2001
 (link) Judgment of Supreme
Court, 11 July, 2003

 Structure of tort law
 General tort law
 Single tort
 Fault

 Illustration of Point of Due Care

 Causation
 Damage Specific tort law
 Case study on joint torts

Summary of the
Lecture References Tort law in the Civil Code ofJapan Bibliography on tort law
 (link) What is causality?

 Joint tort

 Several and Joint liability

 Wine glass case, Illustration

 Structure of Joint liability
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Schedule of lecture
Evaluation by presentation
1st day

2nd day

3rd day

4th day

1st period
10:00-11:00

Introduction

Special torts

Exercise 1

Presentation ofStudent

2nd period
11:00-12:00

General tort

Product
liability

Exercise 2

Discussion andComment

Lunch(12:00-14:00)
3rd period
14:00-15:00

FactualCausation

Joint andSummary
several liability

Supplemental
lecture4th period
15:00-16:00

Legal Causation

Joint andDiscussion andseveral liability Comment

Close(Coffee andCakes)

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4

Frequency of application of the tort
law by Japanese courts
Succession
4%
Relatives
5%

Torts
45%

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GeneralProvisions
14%

Contract
12%

Lecture on Tort

Real right7%
Obligationin general
11%
Unjustenrichment
2%5Best 20 articles of Civil Code of Japan
from the view point of frequency of application(1945-2013)416 723541 95 601 711 110
1% 1% 1% 1% 1% 1%
2%
703

656
1%

770
1%

2%

612
2%
177
2%
90
2%
719
4%

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709
32%

1
5%

415
6%

715
8%

722
9%

Lecture on Tort

710
18%

6

Difference between
Criminal law and Tort law
Criminal law（Legality principle: nul poena
sine lege)

The
other
type

Not
guiltyType of
Crime:
Battery

Punishment

General principle

Type of
Crime:
Assault

Civil law (Remedy)

The
other
type

RemedyType oftorts:
Battery

General principle

Typology
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Type oftorts:
Assault

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7

Function of Law
What is function of law?

Making Justice (Good work will be
rewarded and bad work punished.)
Freedom Do anything whatever you want, if it is notprohibited.

Responsibility
 Minimize damage or social cost which will becaused by your act.

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Types of tort law in the world
French typeType of
Torts:
Assault
The
other
type

No
RemedyType of
Torts:
Battery

RemedyGeneral principle

Roman or German type

The
other
type

RemedyType oftorts:
Battery

General principle

Typology
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Type oftorts:
Assault

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9

French Civil Code(1804)
 Art. 1382 (Civil responsibility in general) Any act whatever of man, which causes damage toanother, obliges the one by whose fault it occurred, tocompensate it.

 Tout fait quelconque de l'homme, qui cause a autrui undommage, oblige celui par la faute duquel il est arrivé, a leréparer.

 Characteristics

 There is no term of right in this provision.
 It means that all of rights and legal interests can becompensated.
 Prerequisite is only 3: fault, damage, and causation
between fault and damage.

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German Civil Code(1900)
 § 823 (Duty to compensate for damage) (1) A person who, wilfully or negligently, unlawfully injures
the life, body, health, freedom, property or other right ofanother is bound to compensate him for any damage
arising therefrom.
 (1) Wer vorsaetzlich oder fahrlaessig das Leben, den
Koerper, die Gesundheit, die Freiheit, das Eigentum
oder ein sonstigers Recht eines anderen
widerrechtlich verletzt, ist dem anderen zum Ersatz desdaraus entstehenden Schadens verpflichtet.

 Characteristics

 Limited list of rights: Pure economic loss is excluded

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Japanese Civil Code (1896)
Article 709 (Tort in general compensation for damage)A person who has intentionally or
negligently infringed any right ofothers, or legally protected interest ofothers, shall be liable to compensate
any damages resulting inconsequence.
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Structure of thegeneral tort law in Japanswitch for plaintiff

intention

negligencecausality

damageinfringementcomparative
negligencedamages

switch for defendantillegality
incapacity
self-defense
necessity
20years passed
from the timeof the wrong

3years passed from the time whena victim knew the tortfeasor

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Dynamic understanding ofgeneral tort law (1/3)
Intention or
negligence

DamageCausation

Incapability

ExcuseDamagesComparative
negligence

Extinctive prescription
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3 years fromawareness of tortfeasor

20 years from the accident
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Dynamic understanding ofgeneral tort law (2/3)
Intention or
negligence

Causation

DamageIncapability

ExcuseDamages

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Comparative
negligence

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Dynamic understanding ofgeneral tort law (3/3)
Intention or
negligence

Causation

DamageIncapacity

ExcuseDamagesComparative 3 years
negligence

Extinctive prescription
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20 years
16

General principle ofthe tort law in Japan
Article 709 (Tort in general compensation for damage)A person who has intentionally or
negligently infringed any right ofothers, or legally protected interestof others, shall be liable tocompensate any damages
resulting in consequence.
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Function ofgeneral provision of tort
 The general provision of Article 709, were madeintentionally abstract in order to give sufficient
discretion to the courts in their interpretation.
 This enabled the courts to cope with newly emerging
problems such as pollution or products liability cases.
 After the judge-made-law, many specific laws cameout.
 Law on the compensation of loss arising from car accidents(1955) → reducing burden of proof, introducing the system ofcompulsory insurance Remedies of harm caused to human health by pollution(1973) → strict liability, reducing burden of proof Law on Products liability (1994) → strict liability, reducing
burden of proof

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Theory of fault(intention or negligence) A. Breach of the duty of foreseenability A person should be considered negligent for his/her
failure to foresee the loss which is likely to occur from
his/her act.

 B. Breach of the duty of avoidability A person is negligent if he fails to take measures needed
to avoid and prevent the loss.
 Foreseeability is required, but in addition to the breachof the duty to foresee the outcome of his/her act. There
should be a breach of the duty to avoid the outcome.

 C. Breach of the duty to avoid foreseeable loss

 A person is negligent if he fails to take measures needed
to avoid and prevent the loss which he/she have toforesee.

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Illustration of
Point of Due Care
140

Minimum pointof Social cost120

Care Cost

100
80

Expected Damage

60
Social Cost

40
20
0

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Point of due care
0

1

2

3

4

5

6

7

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9

10

20

What is fault?
- Retinal disease case Facts

 A premature baby suffered from retinal diseasecaused by oxygen treatment.

 Judgment (Sup. C. Nov. 13 1979) The doctor is not liable, since his treatment was inaccordance with the current standard ofacademic opinion and surgical knowledge.

 However in a similar case 10 years later, theSupreme Court held that the hospital was
liable, presumably taking into account theadvances made by medicine in the meantime (Sup.C. March 26, 1985).
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Tort in general -illegality
 Article 720 (Self-defense, necessity) (1) A person who, in order to protect his own right or that ofa third person against the unlawful act of another,unavoidably commits a harmful act is not liable incompensation for damages; however this shall notpreclude a demand of compensation for damages by the
injured party against the person who committed theunlawful act.
 (2) The provisions of the preceding paragraph shall apply
mutatis mutandis in cases where a thing belonging toanother is damaged in order to avert an imminent danger
which has arisen from such thing.

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Tort in general - causation
 Two types of causation
 Factual causation
 Test of “sine qua non”
 If there is not A (cause), B (result) would be occurred or not?
 If the answer is "no" then there is factual causation between
A and B.
 Adequate causation
 Test of “enhancement of probability(foreseeability)” A(cause) increases probability of occurrence of B (result) ornot?
 If the answer is "yes" then there is adequate causation
between A and B.
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Tort in general –Compensation andcontributory negligence Article 722 (Manner of compensation,
fault in common)
 1. The provisions of Article 417 shall apply
mutatis mutandis to the compensation to bemade for the damage which has arisen froman unlawful act.
 2. If there is any fault on the part of the injured
party. The Court may take it into account inassessing the amount of the damages.
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Tort in general -extinction
 Article 724 (Extinctive prescription) The right to demand compensation for thedamage which has arisen from an unlawful
act shall lapse by prescription if not exercised
within three years from the time when the
injured party or his legal representative
became aware of such damage and of theidentity of the person who caused it, thesame shall apply if twenty years haveelapsed from the time when the unlawful act
was committed.

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General principle of the tort law in caseof multiple tortfeasors Article 719
 If two or more persons have by their joint
unlawful act caused damage to another, they
are jointly and severally liable to makecompensation for such damage; the same
shall apply if it is impossible to ascertain whichof the joint participants has caused thedamage.
 2. Instigators and accomplices are deemed tobe joint participants.
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Yokkaichi Pollution Case (Judgment of the TsuDistrict Court, Yokkaichi Division, July 24,
1967 (Hanji 672-30)).

 Facts: Several factories discharged polluted air andcaused local inhabitants serious bronchial problems.
These factories formed an industrial complex.
 Judgment: It was ascertained that without eachparty's act the loss would not have been caused
and that the defendants, who formed an industrial
complex, were sufficiently related to be made jointly
liable. Even when the act of each tortfeasor did notby itself cause loss, if it caused loss in concurrencewith other tortfeasors' act, all of them were liable.
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Joint torts and factual causation arecontradictory to each other Case1: Each of Y1,Y2,Y3 poured 4mg of poison
into X’s wine glass.
 LD(lethal dose: fatal dose) of the poison is 10mg.

 Case2: Each of Y1,Y2,Y3 poured 5mg of poison
into X’s wine glass.
Y1
Y2

Factual causation
Factual causation

One result

Factual causation
Y3

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Theories on joint
tortfeasor in Japan
Current theory
Y1
Y2

Joint
relationship

Combinedcause

Factualcausation

One result

Y3

New theory (Kagayama)
Y1

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Partly causation

Y1

Y2

Partly causation

Y2

Y3

Partly causation

Y3

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Jointly andseverally
liable forOne
result29

Aim of several and joint liability ofjoint tortfeasors
 A joint tortfeasor is responsible for all
damage of victim, even if one of the joint
tortfeasors' contribution is small.
 The reason why joint and several
responsibility has been imposed to eachof them is to rescue the victims.
 The nature of the joint and several liability
in tort, however, has been, for a long time,
the subject of the controversy or fierce
debate.
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Fact of the “wine glass case”
Suppose there is poison of which fatal
dose is 10mg.
"A" poured poison of 5mg, "B" poured
poison of 4mg, and "C" poured poisonof 3mg into a victim's glass of wine andthen killed the victim.
It caused damage of 12 million yen to
the bereaved family (i.e. "10 mg fatal
dose case" or "wine glass case").
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“Wine glass case”
No use of “sine qua non” theory
Total
Fatal dose:
10mg

Logical Type of cases

A

B

C

A∧B∧C

5mg

4mg

3mg

12mg

(A∧B)∨(B∧C)∨(C∧A)

7mg

6mg

5mg

18mg

A∨B∨C

10mg

10mg

10mg

30mg

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Combination between joint tort andpseudo joint and several liability
 In the past, it has been considered one ofthree tortfeasors is responsible for theentire damages of 12 million yen.
 If one of tortfeasor's act was removed,
then the results of victim's death did notoccur.
 It was reason why each of tortfeasors was
responsible for all damages.
 And this responsibility has been referred
to as a "pseudo (non-genuine) joint andseveral liability".
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Unfair result of
pseudo joint and several liability
 In the pseudo joint and several liability case,even if one of the tortfeasors paid the total
damages of ¥ 12 million for the bereaved
family of the victim, it has been impossible toobtain reimbursement for the other two
tortfeasors because his/her payment has
been considered as a responsibility of his/herown.
 This result is, however, unfair. Because two of
tortfeasors are completely acquitted, andthen, there is no the joint and several liability,
after all.
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Joint and several liability of joint
tortTherefore, at present, even in thepseudo joint and several liability case,when one of tortfeasors “A” paid ¥ 12
million against the bereaved family ofthe victim, “A” obtain reimbursement¥ 4 million from B and ¥ 3 million from C.
The result is the same as the casewhich A, B and C was borrowed ¥ 12
million in solidarity from creditors.
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Combination of joint tort and pseudo
joint and several liability still exsists
 Indeed, looking at the current state of the world,the liability of the joint tortfeasors is believed not a
genuine collective responsibility, but a pseudo
several and joint liability.
 The reason is that, the deep-rooted concept "sinequa non" theory is even now, believed to be
applicable to the case of joint tortfeasors.
 Once again, let us go back to "10 mg fatal dosecase". In this case, it is believed that the theory of"sine qua non" is applied and there is a causal
relationship between act of each tortfeasors andthe death of the victim, therefore, “A” is liable forall damages of ¥ 12 million.
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Logical calculation proved that “sine quanon” theory felt into contradiction
 Alone “A”, however, it is impossible to kill thevictim.
 If “B” and “C” act jointly with “A”, then the
result of victim's death occurs ("A, B and C ⇒Result" case).
 In other words, in a joint tort, the theory of"sine qua non" causes the serious error.
 Because, if "sine qua non" theory is applied tothe joint tortfeasors case, the phenomenon "A,
B and C ⇒ R” case changes into thephenomenon "A , B or C ⇒ R" case.
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History of theory of causationfrom factual and adequate to partial causation
 First, in "Thalidomide case" and "SMON case",these problems solved with theory of factual
causation "sine qua non".
 Second, "the birth of the incident killer case", or"wagoner case", adequate causation theory,
have played a role in limiting the theory of factual
causation. At this stage, however, the theory offactual causation have still survived.
 Third, in "the wine glass case", it became clearthat the theory of factual causation committed aserious mistake, and theory of "partial causation"
led the correct result.

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Theory of partial causation by
supported by Bayesian statistics
 Indeed, the trend of the world has been
dominated by not only the theory of factual
causation, but also by the theory of pseudo
joint and several liability.
 However, from now on, all the problems ofjoint tortfeasors will be resolve by theory ofpartial causation combined with theory ofjoint and several liability.
 Bayesian theory or Bayesian statistics theory
will help the theory of partial causation withcalculating the partial rate of causation or
partial contribution of tortfeasors.
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Calculation of comparative negligencein case bicycle and motorcar(1/6)
Blue book

Red book “Damages calculation
standard of the traffic
accidents” for citizens

 “Damages calculation
standard of the traffic
accidents” forprofessionals.

Published by “Nichibenren Traffic Accident Consultation Center”(Japan Federation of Bar Associations)
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Lecture on Tort40

Calculation of comparative negligencein case bicycle and motorcar(2/6)
 Nichibenren (Japan Federation of Bar
Associations) Traffic Accident Consultation
Center Incorporate foundation established with thepermission of Minister of Transport (at the time) in
1967. Since April 2012, it has changed to the
public benefit corporation with certification fromthe Cabinet Office.
 Aim of the corporation is to contribute to promote
the rapid and proper processing to solve thedispute (ADR) of car accident by lawyers.
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Lecture on Tort41

Calculation of comparative negligencein case bicycle and motorcar(3/6)→person

Traffic
accident
betweenbicycle andcar at theintersection

There issignals

There is no
signals
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Bicycle(Bike) enters in blue
signal, Car enters in red signal
Bike in red signal, Car in blue
signalBike in yellow signal, Car in red
signalBike in yellow then red signal, Car
in red signal
Bike in red signal, Car in yellow
signal

0%
80%
10%
40%
60%

Both in red signal

30%

Width of road is approximately
the same

20%

Lecture on Tort42

Calculation of comparative negligencein case person and motorcar(4/6) ←bike

Traffic
accident
betweenbicycle andcar at theintersection

There issignals on
crosswalk

There is no
signals
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Person enters in blue signal, Car
enters in red signal
Person in red signal, Car in blue
signalPerson in yellow signal, Car in red
signalPerson in green then red signal,
Car in red signal
Person in red signal, Car in yellow
signal

0%
70%
0%
20%
50%

Both in red signal

20%

Width of road is approximately
the same

10%

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43

Calculation of comparative negligencein case bicycle and motorcar(5/6)
Comparative negligence of bicycle is 20%
in case there is no excess of speed of bicycle

TAXI

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44

Calculation of comparative negligencein case bicycle and motorcar(6/6)
Comparative negligence of bicycle is 30%
in case there is excess of speed of bicycle

TAXI

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Structure of Civil Code of Japan
 Part I General Provisions
 Part II Real Rights
 Part III Claims and Obligations
 Chapter 1 General provisions

 Section III Claims and Obligations of Multiple-Parties
 Subsection III Joint and Several Obligations, Reimbursement
 Subsection IV Guarantee Obligation, Reimbursement

 Chapter 2 Contracts
 Chapter 3 Management of Business Chapter 4 Unjust enrichment
 Chapter 5 Tort Joint and several liability in tort, Reimbursement

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Position of unjust enrichment in the
Civil Code of Japan → str
Article 703(Obligation to Return Unjust
Enrichment)A person who has benefited (hereinafter inthis Chapter referred to as "beneficiary")
from the property or labor of others without
legal cause and has thereby caused loss
to others shall assume an obligation to
return that benefit, to the extent thebenefit exists.
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Lecture on Tort47

General principle ofobligations of multiple-parties → str
Article 427(Divisible Claims andDivisible Obligations)In cases there are more than one obligee
or obligor, unless any other intention is
manifested, each obligee or each obligor
shall have the equally proportionate rights
or obligations.

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Lecture on Tort48

Joint and several liability
in tort → str
 Article 719 (Joint unlawful act) If two or more persons have by their joint
unlawful act caused damage to another, they
are jointly and severally liable to makecompensation for such damage; the same
shall apply if it is impossible to ascertain whichof the joint participants has caused thedamage.
 2. Instigators and accomplices are deemed tobe joint participants.
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Joint and Several Obligationsin Japan(1/2) → str
Definition and function of “Joint andseveral obligation”
Article 432(Request for Performance) If more than one person bears a joint andseveral obligation, the obligee may request oneof the joint and several obligors, or all of suchjoint and several obligors, simultaneously or
successively, to perform the obligation, in whole
or in part.

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General structure of liabilityof joint tortfeasors
Suretyshipfor T2
MutualSuretyship

Contribution(real obligation)of T1

Suretyshipfor T1
Contributionof T2

Joint tortfeasor

Joint tortfeasor

T1

T2

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Relationship between Obligationand Suretyship
Ogligor(Debtor)Indemnity of
total amount

ObligorO

Suretyship for
ObligorSuretyS
Obligee

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Guarantee Obligationin Japan(1/2) → str
 Definition and nature of Guarantee
obligation
Article 446(Responsibility of Guarantor)

 (1) A guarantor shall have the responsibility toperform the obligation of the principal obligor when
the latter fails to perform such obligation.

Article 448(Cases where Burden of Guarantor
is More Onerous than That of the Principal
Obligor) If the burden of a guarantor is more onerous thanthat of the principal obligor as to either its subject or
its terms, it shall be reduced to the extent of theprincipal obligation.

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Guarantee Obligationin Japan(2/2) → str
 Article 459(Right to Obtain Reimbursement of
Guarantor Entrusted by the Principal Obligor)

 (1) In cases where a guarantor has given aguarantee as entrusted by the principal obligor, if
he/she has, without negligence, had a judgment
ordering him/her to perform the obligation to the
obligee, or has performed the obligation on
behalf of the principal obligor, or has otherwise in
exchange for his/her own property performed
any other act intended to cause the obligation to
be extinguished, such guarantor shall have a rightto obtain reimbursement from the principal
obligor.

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Structure of several and joint
liability
Joint debtorY1300+(300)

Joint debtor Y2
200+(400)

Joint debtor Y3
100+(500)

Surety of Y3
100

Surety of Y3
100

Surety ofY2
200

Surety of Y1
300
600

Surety600of Y1
300

Surety of Y2
200

600

Y1’s obligation
300

Y2’s obligation
200
2
0
0

36
00
00

Y3’s obligation
100

1
0
0

Obligee X

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Joint and Several Obligationsin Japan(1/2) → str
Definition and function of “Joint andseveral obligation”
Article 432(Request for Performance) If more than one person bears a joint andseveral obligation, the obligee may request oneof the joint and several obligors, or all of suchjoint and several obligors, simultaneously or
successively, to perform the obligation, in whole
or in part.

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Lecture on Tort56

Subrogation of joint obligor
by total payment
Joint obligor Y1

Joint obligor Y2

Joint obligor Y3

Surety of Y3
100

Surety of Y3
100

Surety of Y2
200

Surety of Y2
200
Y1’s obligation
300

Surety of Y1
300
Y2’s obligation
200
2
0
0

Y1paid 600
against X
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300Surety of Y1
300
Y3’s obligation
100

1
0
0

ObligeeObligee X

600→0
600
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57

Joint and Several Obligationsin Japan(2/2) → str
 Article 442(Right to Obtain
Reimbursement among Joint and Several
Obligors)
(1) If one joint and several obligor performs
the obligation, or has otherwise acquired any
common discharge in exchange for his/herown property, such joint and several obligor
shall have right to obtain reimbursement fromother joint and several obligors to the extent
of the respective portion of the obligations
which is borne by each of other joint andseveral obligors.

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58

Why the theory of partial causality
is not supported in Japan?
Almost of all scholars believes infactual causality(sine qua non) andalso believes that causality is the
problem of “all or nothing”.
They cannot think that there is not only
“yes or no” methods but also
quantitative methods, that is “partial
causality analysis” in joint torts.
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59

Special torts
 Art. 714: Liability of person with duty tosupervise person
 Art. 715: Liability of employer Art. 716: Liability of person whoordered work Art. 717: Liability of possessor andowner for defect in structure on land
 Art. 718: Liability of possessor of animal
 Art. 719: Liability of joint tortfeasors
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Function of special torts
A type of torts
Employer’s liability

The othertypes

Tort ingeneralNo-need ofproof of negligence

Need ofproof of negligence

A type of torts
Possessor’s liability

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No-need ofproof of negligence

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Liability of a supervisor of an
incompetent Article 714

 A person who is under a legal duty to supervise a person
under disability is, in cases where the latter is not
responsible in accordance with the preceding two
Articles, bound to make compensation for any damage
which the person under disability has caused to a third
person; however, this shall not apply, if the person who isunder a duty of supervision has not neglected his duty.
 2. A person who has supervision over a person underdisability in place of the person who is under a duty tosupervise shall also assume the responsibility mentioned
in the preceding paragraph.

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Structure of Art. 714(Liability of asupervisor of an incompetent)
intention
causality

damageillegality

Switch for defendantnegligence
Case ofincompetentinfringement

Non-fault of supervisor

incapacity
Self-defense,
necessity

Comparative
negligence
Damages

Switch for plaintiff

20 years passed from thetime of the wrong

3 years passed from the time whenthe victim knew the tortfeasor

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Paperboy case (Sup.C. March 22,
1974(Minshu 28-2-347))
 Facts

 A paperboy A(13 years old) was killed by a minor B(15 years
old), and robbed of the money which A had collected.
 The mother of A sued the minor B and his parents as cotortfeasors, and claimed damages for future anticipatedearnings and non-pecuniary loss.
 In this case the tortfeasor B’s parents had failed to teach him
the basic rules of social life and allegedly taught him to takeevasive action when he was caught for shoplifting.

 Judgment

 Even where the minor can be held liable (Art. 712, 714), if thereis ‘adequate causality’ between the loss on one hand and theneglect of duty on the part those overseeing him on the other
hand, they are liable on the general ground of tort liability (Art.
709).

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64

Case study on torts
Basic structure of joint torts andcontributory negligence
Y3
Y2

Y1

Y1

Y3
Y1
Y1
Y2
Y2

Y3

Y2

Y3
Impossible(contributory negligence)X
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65

Three type of several causes
1.

2.

3.

In case there are several wrongdoers and they contribute to a
total damage, it will become problem of joint tortfeasor, andaccording to Art. 719 Code Civil of Japan, wrongdoers bear
joint and several liability.
In case when a victim himself has made a kind of contribution
for the occurrence of damage, the amount of compensation
will be reduced from the liability of the wrongdoers (according
to the para. 2 of Art. 722 Code Civil of Japan) because there isno fault of wrongdoers in this part.
In case of force majeure(act of God) causes damages, thispart also, as there is no causation in wrongdoer's act, and as
wrongdoer can not be responsible for act of God, wrongdoer's
amount of compensation of damage will be reduced.

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Case1
 A case where a medical accident
followed a traffic accident.
 Judgment of Supreme Court, 13 March, 2001 Minshu Vol.
55, No. 2, at 328
 Judgment upon
(1) whether it is allowed to limit the amount of damage forwhich each tortfeasor is liable in cases where a medical
accident followed a traffic accident and the act of driving
and the act of medical treatment comprise a joint tort;
 (2) calculation of contributory negligence between eachtortfeasor and the victim in cases where a medical accident
followed a traffic accident and the act of driving and theact of medical treatment comprise a joint tort.
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Facts of Case1 1/5
 (1) A(Yusaku TANAKA), the eldest son of the
jokoku appellants (born January 13, 1982)
proceeded onto an uncontrolled crossing at
2-1-8, Kamifukuoka City, Saitama Prefecturearound 03:40 pm on September 12, 1988 at a
speed of 15km/ph without stopping and had
a contact with a passenger car driven by
B(Junichi Akazawa), an employee of the
Kawagoe Motors which is a auxiliary
participant in the jokoku appeal and fell(hereinafter, 'the Traffic Accident').
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Facts of Case1 2/5
 (2) After the Traffic Accident, A(Yusaku) was immediatelytransported by an ambulance to the Kamifukuoka Second
Hospital which is run by the jokoku appellee (hereinafter, the'jokoku appellee-hosiptal'). Doctor C(Toshiiti Inoue), who is
the representative and the head of the jokoku appelleehosiptal (hereinafter, 'Dr.C'), observed A and recognised a
spot haemorrhage(bleeding) by slight injury under the skinon the left side of the head and light injury on the surface ofthe facial skin, but because A was clearly conscious and noabnormality could be observed from outside and A told himthat he had hit the taxi lightly and claimed mere pain on theabove parts, thought that it was a minor accident whichhappened while A was walking.

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Facts of Case1 3/5
 Dr.C examined the x-ray photograph of the front
and left side of A's head and did not find any
fracture of the scull. Therefore, he decided that itwas not necessary to scan A's head by
CT(Computed Tomography), or to keep him in
hospital for a certain period for observation, andafter cleaning the above parts and giving him antibiotics, gave A and the jokoku appellant D(Hitomi,
A's mother) a general instruction to the effect that A
could go to school the next day but should not do
athletics, to come to the hospital again the next day,and if something happened, he should come to thehospital, and subsequently let A go home.
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Facts of Case1 4/5
 (3) Jokoku appellant D(Hitomi, A's mother) returned
home with A(Yusaku) around 05:30pm. Immediately
after returning home, A vomited and claimed that hewas sleepy. She thought it was because of exhaustion
and took him to bed. A did not want dinner, andaround 06:30pm, fell asleep. Around 07:00pm, A
started to snore and droop and profusely perspired,
but the jokoku appellants(A's parents), since A often
slept with snoring and drooping, although theysensed some abnormality, did not consider this state
as serious, and around 07:30pm, put an ice pillow
under him, but left him as he was.

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Facts of Case1 5/5
 However, A's temperature rose to 39 Celsius andbecame convulsive around 11pm and by 11:50pm,
he stopped snoring, and for the first time, thejokoku appellants came to suspect that thecondition of A was serious and around 00:17am on
September 13, called an ambulance. The
ambulance arrived at the jokoku appellants' homearound 00:25 am, but A had no pulse and had
stopped breathing. A was transported to Miyoshi
Welfare Hospital at 00:44 am, but died at 00:45 am(hereinafter, 'the Medical Accident').

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Analyzing facts of Case1 1/4
 Epidural hematoma may occur without a skull
fracture, and at the beginning, there is a period
in which the patient is fully conscious for sometime, and this is later followed by a headache,vomiting, sleeping, loss of consciousness, andafter the brain rigidity, the rate of survival
substantially decreases, and even if the patient
survives, there is a high possibility of serious aftereffects, while if the blood tumour is removed at
an early stage, the condition would improve andthere is a high probability of survival.
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Analyzing facts of Case1 2/4
 Therefore, Dr.C, after examining A, who had possibly had a strong
impact on the head by a traffic accident, should haveapproached the patient or his custodians to let him stay in thehospital for observation, or even if because of unavoidable
reasons, he had to let him go home, should have explained tothem that even if, at the beginning, the patient's consciousness isclear, later, brain haemorrhage may progress by the emergenceof blood tumour in the dura mater and explained its typicalsymptoms in a specific manner, regardless of the extent of theapparent damage, and he was also under an obligation to
explain and instruct them to observe the patient carefully for atleast 6 hours after the accident, and if such symptoms weresuspected, should take him to the doctor immediately. Dr.C was
negligent in fulfilling this duty.

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Analyzing facts of Case1 3/4
(5) On the other hand, the jokoku
appellants were negligent in failing tofulfill the duty of observing and taking
care of A, i.e. for the failure to noticethat A was in a serious state until thebrain stiffening occurred and stopped
breathing, and to take necessary
measures.
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75

Analyzing facts of Case1 4/4
 A's proportion of negligence against JA(taxi driver) shallbe regarded to be 30%.
 The proportion of X's (the jokoku appellants') negligenceagainst Y (the jokoku appellee-hosiptal) shall be
regarded as 10%.
traffic
accident

X(A)(3/20)B(taxi driver)(7/20)

600
medicalaccident

X(1/20)

2,000

Y(hospital, doctor C)(9/20)

200

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2,000

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76

1st solution for case1
Joint and several liability
4,000

4,000

X

X
3,200

3,200

B
(7/20)

Y(9/20)

1,800
1,400

B
(7/20)

Y(9/20)

3,200

3,200

B(8/10)Y(8/10)800

X(4/20)
800

X(2/10)
Impossible(contributory negligence)

X
4,000

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2nd solution for case1
Judgment of Supreme court, 13 March,
2001 Minshu 55-2-328
3,600

2,800

B
(7/20)

Y(7/20)?

2,200

1,400

B
(7/20)

B(7/10)Y(11/20)?

800

X(4/20)
Y(9/10)X(2/10)
Impossible(contributory negligence)

X
4,000

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Judgment of Supreme court
1/2
 1. In cases where a medical accident followed atraffic accident and both accidents concurrently
resulted in the death of the victim and haveadequate causal relation with the death of thevictim and therefore, the act of driving and the actof medical treatment comprise a joint tort, thetortfeasors are jointly and severally liable for the total
damage incurred by the victim.
 It is not allowed to divide the total damage inaccordance with the proportion of contribution andlimit the amount of damage for which eachtortfeasor is liable.
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Judgment of Supreme court
2/2

 2. In cases where a medical accident followed atraffic accident and both accidents concurrently
resulted in the death of the victim and haveadequate causal relation with the death of thevictim and therefore, the act of driving and the actof medical treatment comprise a joint tort,
contributory negligence shall be calculated inaccordance with the proportion of negligence
between the tortfeasor and the victim and it is notallowed to take into account the proportion of
negligence between the other tortfeasor and thevictim.
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Case 2
Case where several traffic accidents
occur simultaneously.
Judgment of Supreme Court, 11 July,
2003

 Judgment upon the method of comparative
negligence and tortfeasor's liability forcompensation in a traffic accident where
negligence of several tortfeasors concurs
with that of a victim and an absolute rate ofnegligence can be ascertained.

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Facts of case2 1/5
1 The following is the summary of the facts
determined legally by the second instance court.

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82

Facts of case2 2/5
 (1) "A," an employee of the jokoku appellant(Y),parked an ordinary truck (hereinafter referred toas the "jokoku appellant's(Y's) car") on a roadwith one traffic lane for each direction in front of
1-1277 Gotanda-cho, Matsuzaka-shi, Mie(hereinafter referred to as the "road of this case")
at around 2:25 a.m. on September 20, 1997, on
the west road side over the traffic lane facing
north, without using an emergency blinker.

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83

Facts of case2 3/5
 "B" an employee of the jokoku appellee(X), Horiguchi
Transportation Ltd., (hereinafter referred to as the"jokoku appellee company") was driving an ordinary
truck belonging to the jokoku appellee company(hereinafter referred to as the "jokoku appellee's car"),heading north on the road of this case. In order toavoid the jokoku appellant's(Y's) car, B drove the carover the center line and crashed into C's car, which
was traveling on the road of this case from the northheading south at 80 km/h or over, exceeding the
speed limit of 40km/h (hereinafter referred to as the"traffic accident of this case").
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Facts of case2 4/5
 The road of this case was under a twenty-four hour
traffic control parking ban. However, there was no
traffic control to ban passing on the right side. Goingfrom north to south, the road of this case curves tothe left around 60m before the site of the traffic
accident of this case, and C saw the jokoku
appellee's(Y's) car after negotiating this left-handcurve. In the vicinity of the site of the traffic accidentof this case, there were no streetlights, and from thedirection that C was traveling, it was not easy to see
the jokoku appellee's(Y'a) car before the point where
C passed the curve.

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Facts of case2 5/5
(3) Due to the traffic accident of thiscase, the jokoku appellant
company (X) suffered damages of
2,703,110 yen and C suffereddamages of 5,811,400 yen.

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86

Analyzing facts of Case2
 (2) Negligence can be seen in the case of A
because he parked the jokoku appellant's car
over a no-parking roadway without using an
emergency blinker. Negligence can be seen in
the case of B because he passed the jokoku
appellee's car by crossing over a center line andinto an oncoming traffic lane. Negligence canalso be seen in the case of C because heviolated the speed limit and the careful driving
obligation. The rate of negligence (A, B, C) is one
to four to one (1:4:1) respectively.
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87

1st Solution for case2
Judgment of the second instance
court
Y(A)
X(B)

X(B)

Y(A)
(300)
Y(1/2)C(480)
X(4/5)(100)
C(1/6)

Impossible(contributory negligence)C(600)
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88

Judgment of appellate court
 With respect to the damages suffered by C, which was causedby the traffic accident of this case, C may seek damages
against the jokoku appellee company and the jokoku
appellant for up to five sixths of the damages that can becalculated by deducting one sixth, C's rate of negligence, fromthe total of the damages in accordance with the relative rateof negligence per party. Thus, C could seek damages against
the jokoku appellee company to the limit of 4,842,833 yen,which is equivalent to five sixths of 5,811,400 yen and demand
4,649,120 yen after taking comparative negligence into
account at the rate of C's negligence, one fifth, of 5,811,400
yen. Against the jokoku appellant, C could demand 2,905,700
yen after taking comparative negligence into account at therate of C's negligence, one half.

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89

2nd Solution for case2
Judgment of Supreme Court, 11 July,
2003 Minshu 57-7-815.
C(1/6)
X(B)(4/6)

C(1/6)
Y(1/6)
X(B)(4/6)
C(1/6)

Y(A)(1/6)(500)
Y((1+4)/6)(500)
X((1+4)/6)(100)
C(1/6)

Impossible(contributory negligence)C(600)
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Judgment of Supreme Court
1/2

 The jokoku appellee company and the
jokoku appellant shall owe the quasi-joint
and several responsibility to the limit of
4,842,833 yen (Any fractional sum less than
one yen shall be rounded off. Hereinafter
all calculations shall be treated as thesame.) after carrying out comparative
negligence of one sixth, which is theabsolute rate of C's negligence to thedamages of 5,811,400 yen.
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Judgment of Supreme Court
2/2
 Of this amount the share of obligation owed by the
jokoku appellee company, is 3,874,266 yen, which isequivalent to four fifths of the amount, and that
owed by the jokoku appellant is 968,566 yen, whichis equivalent to one fifth of the amount. The jokoku
appellee association, which has paid C
compensation for damages of 4,747,654 yen on
behalf of the jokoku appellee company, is to be
regarded as having obtained a right ofindemnification to the amount of 873,388 yen,which exceeds the share of obligation, against the
jokoku appellant based on the subrogation.
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Summary of the lecture 1/3
Studying Law
The purpose of Study To solve difficult problems peacefully.
 To master legal way of thinking throughsolving cases on torts

How to achieve the purpose of study
 To master IRAC: typical way of thinking
common in Lawyers.
 To plan the layout of Argument:
From Syllogistic to Toulmin Diagram
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93

IRAC: The way of legal
thinking I: Issue Find legal issues among facts.

 R: Rules Find applicable rules to facts.

 A1: Application

 Apply rules to facts and deduct tentative conclusions.

 A2: Argument (Most Important) Argue with tentative conclusion pro and con

 C: Conclusion
 Draw final conclusion after rigorous argument.
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94

From Syllogistic to
Toulmin Diagram• Syllogism (Admit of no exceptions)• Major premise: All men are motal.
• Miner premise: Socrates is a man.
• Conclusion: Socrates is mortal.
• Toulmin Diagram (Admit of exceptions)no
Probably yes

Socrates is a man.

Socrates is aman of god ofphilosophy.

All men aremortal.
All living
things aremortal.
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Socrates is mortal.

However, god and truth are
immortal.
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Tort

95

Application of Toulmin
Diagram to Joke
The person who made amanifestation knows that it does
not reflect his/her true intention.

noProbably yes

The manifestation
is valid.

When the otherparty knew or
could have known
the true intention,
the manifestation
is invalid.

The person
who made amanifestation
is liable to it.

The manifestation of intention which is concealed the true intention:
It is invalid in case the other party knew or could have known.
It is valid in case the other party is didn’t know and without negligence.
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Summary of the lecture 2/3
Teaching Law
Working out your Teaching Plan
Reducing that plan by halfOn half for lecture and another half forpractice (ex. Short test or Presentation)

Teaching is the best way for learning
You have to study before teaching.
Teaching is equal with learning andreporting before an audience.
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Summary of the lecture 3/3
Conclusion
Don’t teach too much.
 Let students more practice than teach.
 Then they will learn by themselves.

Teach basic idea through solving one of themost difficult problems.
Try to become the most excellent teacher.
 Imitate his/her methods first.
 Create new methods after your experiences.
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98

Reference Tort Law in Civil Code of Japan Bibliography
 Translation of Civil Code of Japan Hiroshi ODA, "Basic Japanese Laws" Oxford (1997)

 Materials on tort law
 Hiroshi ODA, “Japanese Law” , 2nd edition Oxford(1999)
 Tatsuaki Maeda, “Law of Torts in General “in “Doing
Business in Japan “, Vol. 5&quot; Mathew Bender(2002)
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Tort in general- compensation for damage
Article 709
A person who has intentionally or
negligently infringed any right of others,or legally protected interest of others,
shall be liable to compensate any
damages resulting in consequence.

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Non-pecuniary damage
Article 710
A person who is liable in compensation
for damages in accordance with theprovisions of the preceding Article shallmake compensation therefor even in
respect of a non-pecuniary damage,irrespective of whether such injury wasto the person, liberty or reputation ofanother or to his property rights.
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Death of near relative
Article 711
A person who has caused the death ofanother is liable in compensation fordamages to the parents, the spouseand the children of the deceased, evenin cases where no property right of theirs
has been violated.

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102

Responsibility of minor
Article 712
If, in cases where a minor has caused
damage to another, he was not inpossession of sufficient intelligence tounderstand his responsibility for the act,
he shall not be liable in compensation
for damages in respect of such act.

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103

Responsibility of mentally unsoundpersonArticle 713
A person who has, while in a state ofmental unsoundness, caused damage
to another is not liable in compensation
for damages; however, this shall not
apply, if he has brought upon himself atemporary mental unsoundness either
intentionally or by his own negligence.
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104

Responsibility of person under duty ofsupervising disable person
 Article 714

 A person who is under a legal duty to supervise
a person under disability is, in cases where thelatter is not responsible in accordance with thepreceding two Articles, bound to makecompensation for any damage which theperson under disability has caused to a third
person; however, this shall not apply, if theperson who is under a duty of supervision has
not neglected his duty.
 2. A person who has supervision over a person
under disability in place of the person who isunder a duty to supervise shall also assume theresponsibility mentioned in the preceding
paragraph.

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Responsibility of employer Article 715

 A person who employs another to carry out anundertaking is bound to make compensation fordamage done to a third person by the employee in thecourse of the execution of the undertaking; however,this shall not apply, if the employer has exercised due
care in the appointment of the employee and in the
supervision of the undertaking or if the damage would
have ensued even if due care had been exercised.
 2. A person who supervises the undertaking in place ofthe employer shall also assume the responsibility
mentioned in the preceding paragraph.
 3. The provisions of the preceding two paragraphs shallnot preclude the employer or the supervisor fromdemanding reimbursement from the employee.

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Responsibility of person placing orderArticle 716
The person who placed the order for awork is not bound to makecompensation for any damage caused
to a third person by the contractor in
the course of such work; however, thisshall not apply if the person who placed
the order was in fault in regard to theorder or his instructions.
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107

Responsibility of the possessor ofstructure Article 717

 If any damage has been caused to another person byreason of any defect in the construction or
maintenance of a structure on land, the person inpossession of the structure shall be liable incompensation for damages to the injured party;
however, if the person in possession has exercised due
care in cider to prevent the occurrence of suchdamage, compensation for the damage shall be madeby the owner.
 2. The provisions of the preceding paragraph shall apply
mutatis mutandis in cases where any defect exists in theplanting or the support of bamboos or of trees.
 3. If, in the cases mentioned in the preceding two
paragraphs, there exists any other person who is
responsible for causing the damage, either thepossessor or the owner may exercise the right to obtainreimbursement against such other person.

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Responsibility of the possessor of animal
 Article 718
 The possessor of an animal shall compensate
any damage caused by it to another person;
however, this shall not apply, if he has kept itwith such care as is proper according to thespecies and nature of the animal.
 2. A person who has the custody of an animal
in place of the possessor shall also assume theresponsibility mentioned in the preceding
paragraph.
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Joint unlawful act
 Article 719
 If two or more persons have by their joint
unlawful act caused damage to another, they
are jointly and severally liable to makecompensation for such damage; the same
shall apply if it is impossible to ascertain whichof the joint participants has caused thedamage.
 2. Instigators and accomplices are deemed tobe joint participants.
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Self-defense, necessity
 Article 720

 A person who, in order to protect his own rightor that of a third person against the unlawful
act of another, unavoidably commits aharmful act is not liable in compensation fordamages; however this shall not preclude ademand of compensation for damages by the
injured party against the person who
committed the unlawful act.
 2. The provisions of the preceding paragraphshall apply mutatis mutandis in cases where athing belonging to another is damaged inorder to avert an imminent danger which has
arisen from such thing.

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Responsibility of unborn childArticle 721
A child en ventre sa mere shall, inrespect of his demand of compensation
for damages be deemed to have been
already born.

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Manner of compensation, fault In
commonArticle 722

1. The provisions of Article 417 shallapply mutatis mutandis to thecompensation to be made for thedamage which has arisen from an
unlawful act.
2. If there is any fault on the part of the
injured party, the court may take it into
account in assessing the amount of thedamages.

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Reputation injured
Article 723
If a person has injured the reputation ofanother, the court may, on theapplication of the latter, make anotherrequiring the former to take suitablemeasures for the restoration of thelatter's reputation either in lieu of or
together with compensation fordamages.
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Extinctive prescription
 Article 724

 The right to demand compensation for thedamage which has arisen from an unlawful
act shall lapse by prescription if not exercised
within three years from the time when the
injured party or his legal representative
became aware of such damage and of theidentity of the person who caused it, the same
shall apply if twenty years have elapsed fromthe time when the unlawful act wascommitted.

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Reference materials
 M. von Buri, "Ueber Causalitaet und deren Verantwortung" (1873).
 J. von Kries, "Ueber die Begriffe der Wahrsheinlichkeit und Moeglichkeit
und ihre Bedeutung im Strafrecht", ZStW Bd. 9 (1889) S. 531.
 J. Bore, "La causalite partielle en noir et en blanc ou les deux visages
de l'obligation in solidum", Sem. jur. 1971, I, 2369.
 G. Marty et P. Raynaud, "Droit Civil: Les obligations", 2e ed. vol. 1 (1988)
nos 517, 549.
 HAMAGAMI Norio, "Study on liability of modern joint tortfeasors", (1993).
 KAGAYAMA Shigeru, "Book review on HAMAGAMI, 'Suretyship theory
and partly causation theory in law of compensation', Minshoho ZasshiVol. 66, no.4-5(1972)" in KATO Masanobu (Chief editor), "A hundredyears history of theories of civil law in Japan" (1999), pp. 592-596.
 Hiroshi ODA, "Japanese Law", 2nd ed. Oxford University Press (1999),
pp.195-215.
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The end of Presentation
on torts
Assignment

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