Causal relationship between exterior wall painting and chemical sensitivity was recognized; painting company's liability was affirmed

A building tenant developed chemical sensitivity when exterior walls of the building were painted by an exterior painting company. The tenant claimed damages against the exterior painting company for committing a tort.

Construing that the tenant developed chemical sensitivity due to chemical exposure when exterior walls of the building were painted by the exterior painting company, the court recognized the causal relationship between the exterior wall painting and the tenant's chemical sensitivity, and affirmed negligence of the exterior painting company. On the other hand, the court reduced the compensation by 30% because the tenant had been prone to disease due to preexisting conditions of allergic tendency, diabetes and hepatic dysfunction, and awarded about 2,200,000 yen damages.

This judgment shows a way of interpreting chemical sensitivity and serves as a useful reference. (Judgment by the Osaka District Court on October 6 in 2014, page 306 of Shohisha Hou News, settled at the appeal court)

Summary of the case

Plaintiff:

X (tenant of a room in the building concerned)

Defendants:

Y (exterior painting company)

Parties concerned:

A (site supervisor for the painting work), B (Y's executive director), C to H (medical institutions X consulted)

The following shows how the exterior painting company Y painted the building, a room of which X rented, and how X consulted medical institutions. Incidentally, X started to visit the internal medicine clinic C to receive treatment for diabetes in June 2007.

Y started the painting work on September 13, 2010. After repairing and caulking overall exterior walls, Y washed and painted exterior walls of the building P (overall base coating, middle and top coating on the south wall). On October 19, 2010, Y started applying middle and top coating to the east exterior wall of the building Q. Then Y applied corrosion resistant coating to the iron handrail in the east corridor, water resistant coating to the top rail in the corridor, base and top coating to the exterior wall of the bulkhead on the rooftop, middle and top coating to the iron part on the rooftop, and water resistant coating to the rooftop. In the morning of October 25, Y applied corrosion resistant coating to spiral stairs. In the afternoon on October 25, X complained to the site supervisor A that X was feeling unwell. Then, Y temporarily stopped the painting work. On November 2, 2010, X visited the internal medicine clinic C and told that X had headache due to the paint applied to the exterior wall. On the same day November 2, Y started caulking around sashes of the building P and the building Q, painting and water resistant coating of iron frame stairs and sashes of the building Q. In the afternoon of November 4, X closed X's shop and consulted the internal medicine clinic C and the general hospital D. Y's executive director B visited X and recommended X to go to hospital. The site supervisor A installed an air cleaner in X's shop. X visited the clinic E and told that X was suffering from headache, severe numbness, etc. after the beginning of the exterior painting work. X received a ganglion block injection (anesthetic injection). After adjusting and finishing, Y concluded the exterior painting work on November 26, 2010. The painted area of the building P was about 178 square meters and that of the building Q was about 662 square meters.

X continued visiting the clinic E, complaining that X experienced several symptoms not only in X's shop but also in other places and that X's health conditions were unstable. X restarted receiving treatment for diabetes. In addition, X visited the university-affiliated hospital F and the university hospital G and told that X had experienced headache and numbness of hands and legs after the start of the painting work and that oxygen inhalation relieved the symptoms.

On January 13, 2012, a doctor of the hospital H diagnosed X as suffering from sick building syndrome, telling that the blood pressure and the body temperature were likely to increase because minute chemical substances could easily elevate sympathetic nervous tone. The doctor added that X was getting chemical sensitivity due to exposure to air pollutants. Incidentally, X discontinued X's shop in August 2011 and started to work for a restaurant. Later, X retired from the restaurant due to poor health, and opened an eating place in October 2011.

X filed a 33,000,000 yen suit against Y for damages based on tort liability, alleging that X had developed chemical sensitivity due to chemical exposure during the period of the exterior painting work.

Reason

Y insisted that chemical sensitivity was not recognized as a medically established disease. Although it is not a medically defined disease, a report issued by a study group of the Health, Labour and Welfare Ministry in 2004 pointed out the possible pathological state caused by exposure to minute chemical substances, which cannot be explained by the traditional concept of toxicity. The possible pathological state has been internationally recognized as "multiple chemical sensitivity (MCS)". According to the report, it is undeniable that there may be patients experiencing mental or physical symptoms in the non-allergic sensitive state, reacting to low concentration of environmental chemical substances. Moreover, another study group of the Health, Labour and Welfare Ministry defined the diagnostic criteria for chemical sensitivity in 1997 (hereinafter called "diagnostic criteria 1997"). Therefore, it cannot be affirmed that the pathological state of chemical sensitivity does not medically exist.

Then, the remaining question was whether or not X suffered from chemical sensitivity. Based on the medical interview and results of neurophysiological examination, the doctor of the hospital H stated that X's symptoms fully corresponded to the six characteristics of MCS on the document "Consensus 1999" issued by American medical specialists and that the blood pressure and the body temperature were likely to increase because minute chemical substances could easily elevate sympathetic nervous tone, and diagnosed that X suffered from sick building syndrome and X was getting chemical sensitivity due to exposure to air-polluting chemicals. Moreover, X's symptoms satisfied the diagnostic criteria 1997 and X's symptoms tended to react to minute chemical substances, which was not reasoned by allergic tendency, diabetes or hepatic dysfunction. In view of these facts, the court recognized that X suffered from chemical sensitivity.

During the painting work, Y used a massive amount of paint containing a large volume of toxic volatile chemicals. In the X's shop, air was likely to be accumulated because of its structure. According to the report by the hospital H's doctor, the amount of volatile chemicals contained in the paint corresponds to the amount which may cause sick building syndrome. Based on the above, it was construed that X developed chemical sensitivity and the symptoms got worse due to exposure to chemicals from the paint used for the painting work.

It was inferable for Y that X would be exposed to chemical substances contained in the volatile paint, so it was possible for Y to avoid the consequences. Some of the chemical sensitivity symptoms complained by X were combined with symptoms of diabetes and hepatic dysfunction. Therefore, it was reasonable to reduce the compensation by 30% based on comparative contribution, construing that X's factors (X's vulnerability to disease) contributed 30% to the outbreak of chemical sensitivity.

Explanation

In this court case, X who was running a shop in the building concerned, claimed damages of about 33,000,000 yen in total against the exterior painting company based on tort liability, alleging that X had developed chemical sensitivity due to exposure to volatile chemicals in the paint used for painting exterior walls of the building, as a result of which X had the aftereffect grade 7. The court recognized chemical sensitivity as the aftereffect grade 14 and awarded about 2,200,000 yen damages in total, reducing the compensation by 30% based on comparative contribution.

The issue was whether or not chemical sensitivity was a medically established disease. Even if it was a disease, did X really develop chemical sensitivity? How about the causal relationship between the painting work and the disease? Was it possible for Y to predict the development of chemical sensitivity and to avoid the consequences? Is it possible to regard X's preexisting conditions as factors to reduce the compensation? These questions were discussed at the court.

While recognizing that chemical sensitivity was not medically defined disease, the court affirmed that the disease should be subject to compensation. The court also recognized that X developed chemical sensitivity and the symptoms got worse due to exposure to chemical substances contained in the paint used for painting the building.

Referring to government initiatives to prevent health problems from chemical substances, such as the brochure on chemical sensitivity issued by the Health, Labour and Welfare Ministry, and technical standards for building materials and ventilation equipment under the Building Standards Act, the court stated that it was predictable for Y that use of a certain amount of paint containing volatile chemicals could develop chemical sensitivity and it was possible for Y to avoid the development of chemical sensitivity by evacuating X from the area.

The court construed, however, X's residual disability fell under the category of grade 14 (localized neural symptoms left), not under the category of grade 7 (neural or mental disability left).

On the other hand, the court construed that X's preexisting conditions such as allergic tendency, diabetes and hepatic dysfunction also contributed to the development of chemical sensitivity and reduced the compensation by 30% based on the comparative contribution. It appears that this decision followed the judgment by the Supreme Court where the compensation was reduced applying mutatis mutandis Article 722 of the Civil Code in light of impartiality when the occurrence of residual disability was influenced by the victim's disease (reference precedents 5 & 6).

There are some reference precedents concerning a victim's chemical sensitivity: an appeal court decision related to detergent (reference precedent 1); a decision related to sick house syndrome (reference precedent 2); decisions related to chemical substances from oilstoves (reference precedents 3 & 4).

Reference precedents

1. Judgment by the Tokyo High Court on July 6, 1994
   (Page 72 of Hanrei Jihou No.1511, liability negated)
2. Judgment by the Tokyo District Court on October 10, 2007
   (Page 237 of Hanrei Times No.1279, liability negated)
3. Judgment by the Tokyo High Court on August 31, 2006
   (Page 3 of Hanrei Jihou No.1959, liability affirmed)
4. Judgment by the Tokyo District Court on August 29, 2008
   (Page 71 of Hanrei Jihou No.2031, liability affirmed, accident similar to the reference precedent 3)
5. Judgment by the Supreme Court on June 25, 1992
   (Page 400 of Minshu Vol.46 No.4, a leading case of reduced compensation based on constitutional factor)
6. Judgment by the Supreme Court on October 29, 1996
   (Page 1272 of Koutsu Minshu Vol.29 No.5, ossification of posterior longitudinal ligament)
7. Judgment by the Supreme Court on October 29, 1996
   (Page 2472 of Minshu Vol.50 No.9, victim's unique physical characteristic not recognized as a factor to reduce compensation)