We discuss this ruling in our recent publication in the journal Jurisprudentie Aansprakelijkheid (Francis JA 2020/71), as the ruling provides interesting insights into the norm concerning government liability for provision of research and information by a governmental institute; in this case, the Dutch Aviation Safety Board.
Ruling of the Court
The crash involved an airplane of a Dutch aviation company. Although the investigation into the causes of the crash was conducted by the Portuguese authorities, the Dutch Aviation Safety Board (‘the Board’) assisted in the investigation and was responsible for the provision of information to the victims and surviving relatives. The information provided by the Board, however, deviated on important points from the information that was available to the Board and the information published in the report by the Portuguese authorities. The information provided by the Board suggested that natural causes played a greater role in the accident than the investigation showed. The victims and surviving relatives negotiated compensation with the aviation company. The court ruled that as a result of the incorrect and incomplete information provision by the Board, the victims and surviving relatives were deprived of the opportunity to negotiate a higher compensation amount, thus applying the ‘loss of chance’ doctrine. The court estimated that there was a 20% chance that the victims and surviving relatives would have achieved a better negotiated result, had the Board not acted negligently towards them.
Court combines two norms to establish liability
In our article, we primarily focus on the norm applied by the court to rule that the Dutch State is liable for the research conducted and information provided by the Board.
Under the International Civil Aviation Organization treaty and Dutch aviation legislation, the investigation into the causes of the crash and provision of information is to improve flight safety and is not meant to establish liability of any party involved. Nevertheless, the court ruled that a governmental body such as the Board bears the duty of care to conduct its duties and answer questions to their best knowledge and with the required level of professionalism. Breaching this duty in itself leads to liability towards the relevant persons; in this case, victims and surviving relatives.
To reach this judgment, the court seemingly combined two norms: i) the norm concerning liability for damage as a result of incorrect information provision by the State; and ii) the norm of the prudent and competent (co-) investigator or observer, that must perform their duties to the best of their knowledge and to the necessary level of expertise.
The Dutch State is not deemed liable in all situations of incorrect or incomplete provision of information to citizens. Its liability depends on various factors, including the legal relationship between the parties: what could the recipient of the information reasonably have expected from the provider of the information in light of their expertise? In this case, it seems that this factor played an important role in the determination of liability. The fact that the Board was a government body bearing the duty to exercise its task with the required level of professionalism, and breached this duty, could by itself lead to liability towards the victims and surviving relatives, according to the court. That the recipients of the information were victims and surviving relatives of a plane crash was also significant. As the victims and surviving relatives did not have any real possibility to conduct the investigations independently, it seems understandable that in their negotiations with the aviation company they trusted and relied on the information provided by the Board regarding the causes of the accident.
No appeal proceedings, but further investigations
The Dutch State announced in May 2020 that they would not initiate appeal proceedings against this decision, taking into account the prolonged suffering of the victims and surviving relatives, the contents of the decision, the duration of the proceedings and the State's international obligations. Furthermore, investigations into the crash will be reopened following a Dutch documentary which suggested that the Ministry of Infrastructure withheld information on technical defects of the airplane.