Apologising for negligence

We have nearly all been there - you have hit another car in the traffic. It might be your fault. You hop out with the words, "I'm so sorry" in your mouth and then you hear the words in your head – "Don't apologise. You could make yourself liable." You heard that somewhere . . . so you don't apologise. You swap licence and phone numbers and go through the process of claiming insurance, without using the 's-word.'

For a long time people have been advised not to apologise when they are in an accident or have done something wrong. Lawyers and insurers have given this advice.

It seems to have been at least partially the basis for John Howard's refusal to apologise for the removal of Aboriginal children from their families. It is behind advice to doctors not to apologise for mistakes in medical matters. The concern is that the apology might amount to an admission of fault, which would do two things - Automatically leads to liability in negligence and makes insurance policies void. Both of these might be problematic.

There is some doubt in Australia that any of these things are true. The courts have taken the view that it is their role and no one else's to decide on liability – an apology is not automatically an admission and does not amount to automatic liability.

Indeed in the case of Dovuro in the High Court of Australia in 2003, where the defendants had not only apologised but had said in writing that they had breached their duty of care, the High Court said that they would determine whether there was liability themselves, without considering the apology as determinative. If that is so, then it probably does not make insurance policies void as well. However, the assumption has been made.

In 2002 and 2003 the parliaments of the Australian States and Territories, all passed legislation aimed at tort reform. This legislation included provisions that protected apologies from amounting to admissions and prevented them from being admitted into court as evidence of liability. The aim was to reduce litigation because it was felt that the lack of apology was not only an affront to a civil way of living in society, but that apologising might reduce litigation itself.

There is psychological evidence that apologies reduce people's aggression. Indeed there is evidence that apologising will reduce the blood pressure of the person apologised to. There is also evidence from some hospitals, both in the United States and in Australia, that where the hospital follows a policy of apologising and fully disclosing the events where there have been adverse events, that the litigation budget has gone down.

This is not because there is no litigation; in most jurisdictions if someone is very badly injured social security is simply not enough. In order to live properly, compensatory damages are necessary. However, the budgetary reduction seems to have occurred because people have been apologised to and feel that there has been transparency about what went wrong. Therefore, they have been willing to settle their cases earlier. Thus, there is no need to go to trial and damages can be awarded so that less of it goes to lawyers and more to the person injured.

Australia is not the only country to have passed legislation to protect apologies. Many United States jurisdictions have done so, starting with Massachusetts in 1986. Several Canadian provinces have also done so and the United Kingdom passed its Compensation Act in 2006, which also has a protected apology provision.

This sounds as if it is all-good. But there is an issue to be addressed. It concerns what counts as an apology. The psychological, philosophical and sociological literature is clear that an apology is regarded as a real apology when it includes not just an expression of regret, but also an admission of fault.

It is also clear that when someone simply expresses regret (a partial apology) in a situation where they are at fault, the lack of acknowledgement of fault can exacerbate the situation and increase aggression. This is particularly so when someone has been badly hurt.

The problem is that the vast majority of apology-protecting laws only protect mere expressions of regret. This causes several problems – first, many people do not regard that as an adequate apology. And second, being advised that you can apologise, but only if you do not acknowledge fault, confuses people and makes them even more unlikely to apologise.