Hiroshima District Court orders first state compensation in A-bomb disease lawsuit

by Kanako Noda, Staff Writer

On March 18, the Hiroshima District Court issued a ruling on a class action lawsuit filed by 23 A-bomb survivors (hibakusha) living in such cities as Hiroshima and Kure. Among these survivors, four have since passed away so their family members served as plaintiffs. The hibakusha have been seeking to reverse the decision of the central government in regard to the rejection of their applications for A-bomb disease certification. They consider the decision unjust and are demanding, as well, compensation of three million yen per plaintiff in damages.

In the ruling, Tomoyuki Nonoue, the presiding judge, stated that the Minister of Health, Labor and Welfare had breached its obligations in its handling of three of the plaintiffs’ cases, saying that “The minister rejected their applications without undertaking corrective measures to deal with improper decisions made by the subcommittee in charge of the certification procedure.” The judge also ordered the government to pay a total of 990,000 yen, including damages for mental suffering.

This is the first instance of state compensation being ordered in the rulings handed down over a series of lawsuits involving A-bomb survivors. To date, the Japanese government has lost 15 consecutive cases in the judicial system. In mentioning the responsibility of the government for the way it has conducted its oversight of the certification process--simply following the screening procedure set by the subcommittee without exercising its own initiative--the ruling in Hiroshima will likely influence other lawsuits as well as the screening procedure in the future.

The ruling pointed out that “the subcommittee erred in its judgment of the medical criteria and its interpretation of the mechanism of illnesses induced by radiation” in the screening procedure for the three applicants, to whom the court awarded compensation. It also referred to the fact that in July 2000, in a ruling involving the case of an A-bomb survivor from Nagasaki, the Supreme Court criticized the idea of applying the radiation exposure estimation formula to hibakusha in a perfunctory manner. “Based on the ruling issued in 2000,” the Hiroshima court pronounced, “the Minister of Health, Labor and Welfare should have prompted the subcommittee to review its inadequate screening procedure which disregarded the effects of residual radiation. Instead, in line with the subcommittee’s conclusions, it rejected the applications of these hibakusha.”

Presiding Judge Nonoue stated that the evidence presented in regard to the mechanism of illnesses induced by radiation is “sufficient proof of the development of radiation-related diseases if the average person would find the explanation persuasive,” and issued individual decisions to seven plaintiffs among the 23. Five were denied certification under the new criteria while two were certified. The illnesses cited in their applications were not all approved. The ruling deemed that illnesses suffered by five plaintiffs, including chronic hepatitis--diseases not currently on the list of official illnesses for immediate certification--be recognized as A-bomb diseases. And it repealed the rejection of applications by the central government, judging the action unlawful, while granting compensation to three plaintiffs.

For the two plaintiffs who suffer from cataracts and lung cancer, the court, after reviewing their history of symptoms and their lifestyles, did not accept that their illnesses were induced by radiation. It also dismissed the claims made by 18 plaintiffs who had already been certified under the new criteria, saying “no benefit for their cases is found.”

According to the lawsuit, the plaintiffs are male and female hibakusha between the ages of 64 and 91 who experienced the atomic bombing in Hiroshima, including those who entered the city during the aftermath. Their applications were denied between March 2004 and June 2007. The Japan Confederation of A- and H-bomb Sufferers Organizations said that 13 lawsuits at the district courts and eight lawsuits at the high courts nationwide are currently being contested over this matter. At the Hiroshima District Court, this ruling was issued in connection with the second lawsuit, following the first lawsuit of August 2006 when all 41 hibakusha were recognized as A-bomb disease sufferers.

(Originally published on March 19, 2009) 

Commentary: Stance of the Japanese government is harshly criticized

by Hiromi Morita, Staff Writer

In its ruling issued on March 18, the Hiroshima District Court ordered the first state compensation in a series of class action lawsuits over A-bomb disease certification. The court harshly criticized the stance of the Japanese government, which continues to neglect A-bomb survivors who deserve certification. The ruling is set to shake the foundation of the certification system, which the government has not reformed, in spite of the fact that the judicial branch has demanded that the government “make decisions based on the actual conditions of the hibakusha.”

A government subcommittee, comprised of doctors and experts, is in charge of the screening procedure for A-bomb diseases. The subcommittee, in its decision-making, places emphasis on the radiation exposure estimation formula, which was calculated on the basis of initial radiation after the explosion. It has been criticized, though, in applying the formula in a perfunctory manner by disregarding the effects of residual radiation, including radioactive fallout and induced radiation.

Since April 2008, the Japanese government has introduced new screening principles by which hibakusha can be certified immediately if they meet certain conditions such as their distance from the hypocenter, the time they entered the city center, and the contracting of a designated disease. As a result, the number of certifications has increased. The government, however, still maintains a system in which the screening process is left to the subcommittee and individual decisions regarding cases which, the subcommittee says, don’t meet their conditions are not provided due consideration. Since some hibakusha, who were unable to obtain certification from the Japanese government, have been recognized by the judicial branch to be suffering from A-bomb diseases, it can hardly be said that the government is making decisions based on the actual conditions of the hibakusha.

Not only has the central government lost 15 consecutive cases in the judicial system, the latest ruling holds it responsible for compensation. It is high time for the government to return to the fundamental principle of the Atomic Bomb Survivors Relief Law, which obligates the government to provide comprehensive relief measures so as not to perpetuate the evil of the atomic bombing. Time has come to reform the nature of the relief administration itself, not simply making superficial amends to the criteria, such as increasing the number of illnesses for immediate certification.

Takeya Sasaki, chief attorney for the plaintiffs from Hiroshima, said, “This is a landmark ruling in that it ordered the state to pay compensation while marking the 15th consecutive victory for hibakusha. In judging the Minister of Health, Labor and Welfare to be in breach of his obligations, the decision may prod an apology from the central government and is bound to influence forthcoming lawsuits.”

Osamu Okabe, director of the General Affairs Division of the Health Services Bureau of the Ministry of Health, Labor and Welfare, said, “Though some of the claims by the government were recognized, some others were not. After the details have been confirmed, we will consider an appropriate response, conferring with the relevant ministries and agencies.”

(Originally published on March 19, 2009)

Related articles
Cirrhosis recognized as A-bomb disease by Tokyo High Court (March 17, 2009)
Gathering to support A-bomb disease lawsuits is held in Hiroshima (Dec. 10, 2008)