Home Care and Liability for Damages: Focus on the Supreme Court Case Concerning a Person with Dementia Killed by a Train in 2016

Abstract

The Civil Code imposes liability for damages in tort acts committed by persons with mental disabilities, such as persons with dementia, on their family. However, if family caregivers have comprehensive liability for damages because of family, it might cause them to give up home care, leading to early institutionalization. This study aimed to examine who had liability for damages inflicted by persons with mental disabilities and what kind of duties to take measures to prevent care accidents caused by wandering of persons with dementia were required, and to offer suggestions on how to address future similar cases. The Method consisted of analyzing the 2016 Supreme Court case concerning family caregivers’ liability for damages inflicted by a person with dementia killed by a train and cases of care accidents caused by persons with disabilities’ wandering while under care of care facilities. This study comprehensively dealt with liability for damages related to wandering of persons with dementia. The Supreme Court judged that the family caregivers did not have liability to supervise the person with dementia because of being family. Furthermore it defined criteria to find a Person Equivalent to Supervisor who was liable for damages inflicted by persons with mental disabilities. Analysis results showed that the Court did act to reduce the family caregivers’ burden: these criteria required consideration of the caregiver’s living conditions, the care-receiver’s nature and incidence of the problematic behaviors, and the relationship between the caregiver and the care-receiver, and did not attach great importance to kinship. Furthermore, analyzing the cases of the care accidents caused by persons with disabilities’ wandering while under the care of the care facilities showed that the Courts did not require the caregivers to take high-level measures to prevent persons with dementia from wandering. If these judgments are considered appropriately, the human rights of both family caregivers and persons with dementia who choose home care will be protected.