I'm certainly no lawyer, however my understanding of how the courts determine negligence is (in very simple terms)
A) That a duty of care exists
B) That the the duty of care has been breached
and C) That damage or injury was cased by the breach
Clearly A & C exist in this case.
When determining B the court looks at the standard of what actions an average (not exceptional) individual with similar training and experience would have done in the circumstances, and if the actions in question significantly deviate from the norm.
To me its pretty clear that an average, even low standard Captain of a 737 in airline operations would be able to have determined that a go around was the correct action to take. Given the serious damage caused including loss of life, charges of criminal neglegence including a gaol term as punishment shouldn't be discounted just because he's a pilot.