Introduction:
Japan’s tort liability system has been condemned for its shortcomings, including how complex tort cases are treated, such as tort litigation arising from a mass accident or environmental pollution. Although several administrative compensation schemes were adopted in response, they were incapable of addressing cases concerning environmental pollution cases. Instead, the tort liability system has been addressing the limitations of the administrative compensation system despite its defects.The high profile Minamata Case is a great illustration of this.
This paper will
In essence, the case showed the perception of judges about the unequal bargaining power between victims and large companies and how the Japanese judiciary has helped create a pro-active approach to environmental pollution cases.

Part I – General Rules of Tort Liability

The operation of current tort liability system is based on tort provisions under the Civil Code and other special tort provisions. 

In case law, the loss claimed by a victim can be compensated with primary remedy of monetary damages if it had a relationship of ‘adequate causation’ with the tortfeasor’s act. 

However, concerning the environmental pollution cases, proving a causal relationship is difficult because the court generally heightens the standard of due care owed to by a defendant company.

Part II – The Pollution-Related Health Damage Compensation System 

Background of Minamata case

The manner of the outbreak is a result of environmental pollution caused by methylmercury poisoning which will result in neurological disorder. The victims from Minamata consumed a lot of fish contaminated by the toxic compounds discharged into the sea and rives from Chisso Corporation as waste effluent. The first lawsuit happened in 1969. Later, the court held in favor of the plaintiffs and awarded largest compensation in history. However, such remedies were deemed to be insufficient to redress victims’ medical conditions and grievances.

To address the absence 
Under Japan’s civil code, victims of pollution-related disasters, such as Minamata case, faced problems in court. Japan’s compensation system was enacted in response to the absence of adequate judicial remedies.

The Enactment of the Pollution-Related Health Damage Compensation Law

In 1973, the Pollution-Related Health Damage Compensation Law superseded the Law concerning Special Measures for the Relief of Pollution-related Health Damage. This law designates two types of areas: Class I areas are where severe air pollution occurs and many people suffer from respiratory disease (non-specific disease), and Class II areas are where many people suffer from mercury poisoning, cadmium poisoning, and arsenic poisoning (specific disease) causally related to industrial or mining waste. 

Regarding Class II areas, it is necessary for pollution patients to establish a causation link between the symptoms and the pollutant. Once this has been established, under the polluter pays principle which is embodied in this Compensation Law, responsible companies are required to pay in full. This was intended to provide prompt and just compensation for pollution victims. Yet, such a statutory attempt at administrative compensation was also a failure. The certification part and some other factors were also causes which rendered the administrative system ineffective.

Part III – Tort Litigation As Restoration Tool For The Pollution Compensation System

The failure of the Pollution-Related Health Damage Compensation System

(i) Dysfunction of the Minamata Disease Certification Procedure

The success of an administrative compensation system hinges on fair and prompt certification procedure. Following the decision in the first lawsuit, the number of applications for certification soared and the certification procedures were delayed. The number of those rejected has exceeded the number of those certified. 

It had been argued by the victims that the criteria of being certified was adopted to cap the number of certified patients considering Chisso’s financial ability. 

Consecutive tort litigations aid to resolve the flaws in the compensation system.

Minamata Disease Long Running Litigations

(i) The Second and Third Lawsuit

In the second and third lawsuit being brought by the uncertified victims, not only they demanded damages against Chisso, one group of the victims asked the court to clarify the 1977 critieria for Minamata disease. In addition, the third lawsuit pursued the State and prefectural governments’ responsibilities for Minamata disease. In both cases, the court held in favor of the plaintiffs. The court declared that the combination of symptoms was too narrow as criteria for the disease and that the State and Kumamoto Prefecture were liable.
(ii) Lawsuits outside the Minamata Bay 

After Chisso polluted Minamata Bay, some of victims moved to other places. Those victims filed lawsuits for compensation against Chisso, the State, and Kumamoto Prefecture. These plaintiffs commonly claimed that those defendants failed to exercise their authority to prevent the spread of the disease, and challenged the reasonableness of the 1977 Criteria. 

All involved courts recommended settlements between parties for each pending lawsuit. However, the State and Kumamoto Prefecture declined their offer.

(iii) The Supreme Court Decision on the Kansai Lawsuit and Its Impact

The Kansai group rejected the political solution regarding the issues of uncertified victims and brought the case to the court. It was the first Supreme Court decision on the issue of the State and the Kumamoto Prefecture’s responsibilities regarding Minamata disease. The Court held both of them liable and also affirmed one of the previous decisions that the 1977 criteria was inadequate. Both the 1977 Criteria and the judicial criteria stand since the Ministry reaffirmed the former criteria was adequate.

The uncertainty about which criteria should be adopted led the members of Kumamoto Screening Committee for Minamata Disease Patients to close it for almost 3 years despite the flood of applications.
(iv) New Wave of Minamata Litigations

From 2005, there were new wave of Minamata litigations: the No More Minamata Lawsuit, the Third Niigata Minamata Disease Lawsuit and the Second Generation Lawsuit. All of them were seeking judicial recognition as a Minamata disease patient. In 2010, a settlement was, at last, reached to compensate as-yet uncertified victims. 

From the aforementioned events, it reveals that as far as environmental pollution cases are concerned, the administrative compensation scheme does not work well. Rather, the tort liability system has been addressing the limitations of the administrative compensation system.
Part IV – Shortcomings of the System
Japan’s pollution compensation system was limited in scope—it was designed to respond to a small number of pollution problems in specific geographic areas. Furthermore, contextual nuances must be weighed when drawing lessons from Japan’s experience. Compared to the United States’ legal system, Japan’s legal system has traditionally been more receptive to the independent administrative resolution of disputes, which is preferred to judicial intervention.
No-fault Liability Provisions in Pollution Control Laws 

In 1972, a strict liability scheme was introduced into the Air Pollution Control Law and the Water Pollution Control Law. Whenever any air pollutant or water pollutant injured human life or health, the person who released such pollutant shall be liable to compensate any damages resulting in consequence. It means that a defendant acted intentionally or negligently is not required to prove.

From the perspective of industry, causation standards were so relaxed that the system became a no-fault compensation scheme which had an increasing deterrent effect. 

Furthermore, one might be able to notice that how the tort litigation involves in environmental pollutions problems.
Part V – Role of the Tort Liability System in Environmental Pollution Problems 

Role of the Tort Liability System in Relieving Minamata Disease Victims
(i) Driving Force for Administrative Compensation System
For the purpose of relieving Minamata disease victims, tort litigation played a critical role in establishing and operating an administrative compensation system. In the creation of the Pollution-Related Health Damage Compensation System, Minamata disease victims groups could take advantage of the overall victory in the First Minamata Disease Lawsuit. Chisso never took the victims’ request seriously until the court held it liable. After the Supreme Court questioned the propriety of the 1977 Criteria, though never revoked, a flood of applications and new lawsuits have certainly captured the interests of public and ruling parties.
(ii) Social Reintegration of Minamata Disease Victims
Victims have been continuing to press for apologies from Chisso, Minamata City, Kumamoto Prefecture, and the State. Victims had suffered from discrimination throughout the course of the event. The Tort Liability Scheme has yet proved to be completely adequate. However, it was significant for Minamata disease victims that the highest court in Japan made the offending company, national government, and prefectural government legally accountable for their sufferings under the tort liability system.
Conclusion

The tort liability system has both merits and deficits, as does the administrative compensation system. It is nevertheless true in Japan that, given these phenomena, the tort liability system serves an increasingly important role even in the areas covered by administrative compensation systems.