An Aging Society

It goes without saying that Japan is rapidly becoming an aged society. By 2025 there is predicted to be 7 million people suffering from dementia, 50% more than in 2012, and one in four people over the age of 65 will be suffering from the condition. Issues concerning people with dementia exist in many forms. It is a large problem that younger people must also think about as something that will affect them personally in the near future.

In Kobe city, a committee was recently formed to address the topic of “considerate community planning” for dementia patients, and I participated as one of the committee members.

What is considerate community planning?

A considerate community can be thought of as one in which dementia patients can live at ease and safely, and have their own wishes respected. I would agree with the opinion that to be considerate of people with dementia means providing a community that is considerate towards the family members of patients as well. As a part of this, last year a court judgment was handed down that gives us cause to consider the issue of to what extent a family should be responsible for an accident that is caused by a person with dementia. The judgment has already been discussed in a previous column by one of my colleagues, but this time I would like to take another look at it from the viewpoint of considerate community planning.

Liability of family for railway accident caused by a dementia patient (Supreme Court decision 1 March 2016)

The highly-publicised judgment addressed the issue of to what extent family members must bear the liability for the damage suffered by a railway company due to a railway accident involving a person with dementia. I think this case was of enormous interest for all people who are taking care of a person with dementia within their family.

In the case in question, on 7 December 2007, at Kyowa Station on the Tokaido Main Line, a person suffering from dementia (a 91-year-old man requiring level 4 nursing care and level IV on the elderly dementia patient autonomy scale) who had wandered away from his home entered the railway line and was struck and killed by an approaching train. JR Central commenced civil proceedings against the man’s family members (his wife (93) and eldest son (65); his wife was 85 years old at the time of the accident) for the damage suffered by the company, including the cost of providing alternative transportation for passengers.

First of all, how should we consider liability when an accident is caused by a person with dementia? In the theory of tort law in the Civil Code, in order to bear liability a person must have the capacity to appreciate that their own actions are punishable by law due to being illegal; capacity is determined on an individual basis, but is generally considered to be attained around the age of 12, when a child graduates from elementary school. Therefore, a person who lacks such capacity does not bear any liability. In the case in question also, the deceased man did not bear liability as he lacked capacity. As to who bears liability then, it falls to the person who bears the legal obligation of supervising the person that lacks capacity (Civil Code Article 714). The case in question was contested on the question of whether the man’s wife and/or son bore such an obligation (including the question of whether they were equivalent to statutorily obliged supervisors). In the Nagoya District Court’s first instance decision, the court ruled that the wife and son were fully liable for JR Central’s claim of approximately 7.2 million yen, but the Nagoya High Court partially overturned this decision in favour of the son, instead ordering that only the wife was liable for half of the claim, approximately 3.6 million yen. Therefore, the lower courts were split on the issue of liability. The grounds for the High Court’s decision were that the wife lived with the man and was providing him with care, so because she was in a position to control his actions, she had an obligation as his supervisor and could not be said to have fulfilled that obligation. Meanwhile, because the son only visited his parents’ home about three times per month, he was not involved in his father’s care on a daily basis and was therefore not liable.

Conversely, the Supreme Court held that neither of the family members were liable. The Court found that in order to recognize a person’s status as having an obligation to supervise in relation to damage caused against a third party by a dementia patient, simply stating that the obligation exists in the statue law is insufficient. Instead, the Court provided a detailed decision from the viewpoint of “whether the person can actually supervise properly to prevent causing damage”, and ruled that in this case neither the wife nor the son bore an obligation. Of course, the Court did not provide a general ruling that family members are not liable for any accidents caused by a person with dementia that they are caring for. If the conditions make supervision possible, for example an adult child is living with and providing daily care to a parent suffering from dementia, then there is a high possibility that liability will arise.

Conclusion

Concerning the application of the above Supreme Court decision to future cases, there are some who are worried that it may result in making it easier for a court to find that a family is liable for a dementia patient’s accident if they are caring for the person on a daily basis. If the responsibility of carers increases then the number of people who will care for family members with dementia will decrease, which is a concern for dementia patients as their world will become difficult to live in with more restrictions placed upon their freedom. Also, the types of accidents that dementia patients may cause are not limited to the above railway accident, but also include fires, traffic accidents, and personal injury, so there will be cases where the aggrieved party is not a company but an individual. Therefore, we can imagine many people becoming involved in such disputes, either on the side of a dementia patient who causes an accident or the side of a victim of such an accident. If we think about this situation, it is important to consider providing compensation measures such as insurance (e.g. insurance against third-party claims, although the applicability raises various issues), public support and assistance, and accident relief systems.

The problem of apportioning liability and the payment of damages when a person with dementia causes an accident is just one aspect of community planning that is considerate of dementia patients, but it will be necessary to think about “considerate community planning” that draws together wisdom from the government and many other fields of expertise in the future.

(Translated from the original Japanese)