Japanese today boast the world’s longest lifespan—80.5 years old for men and 86.83 for women. However, such records are meaningless unless we manage to resolve the variety of complex problems accompanying the rapid graying of our population. Many of us live with the elderly, or are involved in their care one way or another. All of us, the care-giver and the cared alike, must deal with these challenges on a daily basis in our own lives. Under such circumstances, we need actions, not words.

　　　　　Against this backdrop of an aging population, how can each of us live a healthy and happy life? And when we become frail and weak due to advancing age, how can we overcome anticipated problems? How should we establish a social framework under which we can still hope to live with safety, free from anxiety as much as possible? If we can create such a model scheme, we will be far happier than now, living with a much greater sense of security. To stretch this point, success in creating such a framework will enable Japan to contribute more significantly to the wellbeing of mankind as a whole.

　　　　　In that vein, a ruling handed down by the Supreme Court of Japan on March 1 was quite thought-provoking. The case involved a 91-year-old man with advanced dementia who was hit by a train in Obu City, Aichi Prefecture in 2007.

　　　　　The man in question apparently slipped away while his wife, then 85 years and herself requiring nursing care, was dozing off. He then wandered onto the train tracks and was hit and killed by an oncoming train. That was the understanding of the court, although exactly how he wandered onto the tracks is difficult to ascertain.

　　　　　In 2010, the railway company, JR Central, sued the wife and son for \7,200,000 (US$64,000) in damages for service disruption caused by the accident, claiming the family had supervisory responsibilities for the man. The family countered that the real victim in this case was the man, holding the railway operator responsible. Both parties failed to compromise, and the first ever court case of this kind in Japan ensued.

　　　　　At first, the Nagoya District Court fully accepted JR Central’s argument, ordering the wife and the son to pay ￥3,600,000 (US$32,000) each. Next, the Nagoya High Court agreed that the son had not had supervisory responsibilities over his father, since he had for years lived away from him; the same court ordered the widow to still pay ￥3,600,000. Finally, in a reversal of this lower court ruling, the Supreme Court determined on March 1 that the wife also had not had supervisory responsibilities over her husband, and therefore did not have to pay any compensation.

Growing Risks of Aging

　　　　　In this case, the man with dementia had been looked after by his wife, who herself requires some degree of public nursing care. Their daughter-in-law had also moved nearby to help out. As noted above, her husband had not lived with his parents for many years, and still resided in Yokohama City.

　　　　　The Supreme Court ruling—that this family is not liable for damages—was based on the following points: 1) Under the Japanese Civil Code, the wife bore no supervising responsibilities just because she was living with her spouse; 2) The court’s judgment must be based on a comprehensive determination of the family’s involvement in the daily life of the dementia patient; and 3) The family did its best to care for the man, but preventing his wandering was extremely difficult under the circumstances.

　　　　　Following the decision, the son said, “The ruling by the Supreme Court is very considerate. I am certain that my father is very pleased with it.” This judgment, which reflected the court’s consideration of the family’s plight, must have won the approval of many people. But there are other important elements that must be considered in connection with the ruling.

　　　　　In Japan today, one out of every seven Japanese over age 65 suffers from some form of dementia; in ten years, the ratio is expected to increase to 5-1. And accidents of this kind will continue to happen. How should we deal with them? It is no longer somebody else’s business.

　　　　　Toshihiro Suzuki served as a legal counsel in a law suit involving victims of an HIV-tainted blood scandal in the l980s and left a significant mark on the prevention of abuse in this area. He had this to say about the JR case:

　　　　　“Needless to say, the primary victim in this case is the man with dementia who was killed in the accident. In this light, I believe the JR should be held responsible, recognizing more distinctively the dangers involving railways. In our rapidly aging society, risks of every kind are continuing to grow steadily. There has to be a stronger emphasis on how to control the varied elements of risk, including railways.”

　　　　　Suzuki takes a harsh view, but did the accident in question result from a specific fault on the part of JR Central? Had the railway operator failed to take appropriate countermeasures against such an accident? As regards this point, the court stopped short of criticizing JR Central although the family accused the train operator of negligence. And JR Central assumed a position that the variety of preventive measures it has taken against possible accidents over the years were recognized by the court. Evaluation is divided in this regard.

　　　　　Because the Supreme Court failed to specify who assumed supervisory responsibilities for the man with dementia, JR Central took the losses. While one feels genuinely sorry for the family over the loss of a precious life, I wonder if it is fair for a corporation to end up assuming effective responsibility while the family won exemption from liability. Tsutomu Shimizu, another defense counsel for the victims in the afore-mentioned HIV case, remarks:

　　　　　“We now live in a rapidly aging society that mankind is experiencing for the first time in history. Under such circumstances, the recent ruling has raised this question:To whom should we entrust those incapable of assuming responsibility for their own actions?

　　　　　“Accidents affecting railway operators could include suicides, little children, or dementia patients—as we have discussed. Corporations must naturally weigh the risks of running their businesses, but I believe it is not right to expect corporations alone to bear such risks. It would also be wrong, I think, to hold the government alone, or individuals, i.e., families, alone accountable.

　　　　　“In view of the harsh reality of life, our society has yet to face up to this crucial problem squarely. Somebody must pay for an accident, which means anybody can easily be a ‘victim’ of the present framework. We must nurture a society in which everybody is spared undue liability. But this, I’m afraid, is a very hard thing to accomplish.”

A Responsibility Vacuum

　　　　　In the recent ruling, the Supreme Court did not hold the son liable for damages, as he has been living away from his father over the years, and therefore had no supervisory responsibilities for him. But Suzuki expresses concern as regards this decision:

　　　　　“It will be dangerous if the court’s ruling should lead to an extended interpretation that not getting closely involved with a member of the family leads to indemnity. Such a view could prompt a family decision to put a mentally disturbed person in an institution. But I don’t suppose any of us wants to create such a society.”

　　　　　Shimizu chimes in:

　　　　　“If one is not held responsible for supervising family members because he lives away from them, it could prompt a notion that he can simply put his aged parents in a nursing and care facility instead of caring for them. I can hardly view this as a desirable solution.”

　　　　　In order to prevent our society from moving in such a direction, shouldn’t we share again the importance we have always attached to our families and refresh our traditional commitment to ties among family members as the basis of our core values?

　　　　　The idea that one should not be held responsible for taking care of members of his own family because one lives away from them may encourage neglect of family members. Isn’t it better for all of us that we reconsider the meaning of family and take a different view of family ties and family responsibilities?

　　　　　I feel that family members do fundamentally have responsibilities for each other. Should a legal case develop, I hope the court will exempt a family from liability only after the judges decide the family members have done everything they could to carry out their responsibilities. It is better for society as a whole, as well as individuals concerned, that a “responsibility vacuum” not be created.

　　　　　What can we do additionally to tackle the challenges of our rapidly aging society? Mr. Shimizu, Mr. Suzuki, and I have two things in mind. Firstly, that all of us in our society, especially family members, should readily help each other. Secondly, we need to enhance our insurance system. In point of fact, this I believe is the correct path we should take to make the most of our traditional merits and values.

(Translated from “Renaissance Japan” column no. 696 in the March 17, 2016 issue of The Weekly Shincho)