Five minutes before I was due to leave I found our flight was cancelled. Although we were reassigned to a flight the next day, the airline never once tried to contact us. The airport next morning landside was chaos. But when we made it to airside the situation was worse.
Most passengers did not have gate numbers on their boarding passes, and I roamed from gate to gate trying to discern our departure point. I tracked it down and we boarded, but 80 passengers weren't onboard. The captain announced that the luggage of the no-shows would be offloaded, but softened his approach to allow 50 latecomers on. Still, the chaos meant that costs were run up.
Who's liable?
Who should pay? The Hong Kong Observatory was criticized for failing to hoist Signal 8. Travelers accused airlines of not keeping them informed. The Airport Authority was unable to cope, and the public flight information system didn't display adequate information. Or should travel insurers pick up the tab?
These events brought back vivid memories for me. In 1998, chaos ensued when Chek Lap Kok Airport opened. Almost every IT system in the facility was blamed for something. The government initiated a public inquiry and I represented the supplier of the flight information display system.
The six-month inquiry examined massive amounts of evidence. Everyone blamed everyone else, and the report ran to 700 pages. Part of the lawyers' job was to speculate how their client might be found liable for the problems-in the event, I am aware of no claims of any substance having been mounted.
Legal precedents
In strict legal terms, though, the landscape for liability is reasonably clear. In the event of mishap, various public bodies will be judged on whether they breached their statutory duty. Just because something goes wrong or is miscommunicated does not mean that the public body involved has breached its statutory duty. A breach usually means there has been clear negligence by one or a few key decision makers. The public body may have caused or contributed to a problem without triggering its own liability, and this leaves defenses open to other parties to the argument.
Suppliers of IT systems have their own potential liabilities and defenses. The supplier's primary point of responsibility is its contract, and the only people who can sue on that contract are the parties to it. Where there is a problem attributed to the supplied system, the complaining party (normally the owner of the system) must first show that it (here, the owner) has been caused loss (nearly always measurable financially) by a breach of the contract. So if the owner has not lost any money (probably because it has not been sued by someone else), or if the system cannot be shown as an appreciable cause of the problem, a contractual claim will not succeed.
Even where the cause does seem to be clearly referable to the system, the supplier may have a good legal reason why it is not liable, or liable to such a limited financial extent that a lawsuit is not worthwhile. The supplier: may have built the system in reliance on a design prepared by someone else; may establish that the failure is due to an integration problem and did not assume the role of systems integrator; may say that the system passed all its acceptance tests, so the risk of operation has passed to the owner or; may have a limitation or exclusion of liability clause that the owner agreed to as part of the risk apportionment during contract negotiations.
Where a claimant does not have a claim under a contract, his next line of argument may be in the tort of negligence. He will need to establish that his opponent owed him a 'duty of care' which has been breached and caused him loss. Generally, while courts are often willing to find that suppliers of goods and services owe a duty of care to consumers who did not enter into a contract with the supplier but have been harmed by it, it is a brave consumer who takes on a major supplier or authority to claim damages. Courts are slow to find that a duty of care exists between the major protagonists, because the extent of the obligations should be set out in the contracts. Damages in a negligence claim can be significantly reduced where the claimant has been guilty of contributory negligence.
There are other hurdles, such as the issue of 'remoteness'-some damages, even though caused by the failure of a system, are too remote from the original cause to require the person responsible for the failed system to be liable. There are also restrictions on the length of time after an event that a contractual or negligence claim can be made.
In sum, lawyers do not expect litigation to arise out of the recent problems at the airport.
Peter Bullock is head of Technology & Services Law, Asia Pacific and a Partner of Masons' International Law firm. He can be contacted at peter.bullock@pinsentmasons.com