Apologies and Civil Liability in the UK: a View from Elsewhere
| Published date | 01 May 2008 |
| Date | 01 May 2008 |
| Pages | 200-230 |
| DOI | 10.3366/E1364980908000310 |
| Author | Prue Vines |
In recent years many Common Law jurisdictions have passed legislation to prevent apologies from amounting to admissions of liability or from being admitted as evidence in civil liability cases. In this context the relevant form of civil liability is the law of negligence, the dominant form of tort or delict applied to cases of personal injury. In the UK section 2 of the Compensation Act 2006 is one of the most recent of these provisions. Section 2 applies to England and Wales but not to Scotland.
Compensation Act 2006 s 17(1).
It provides thatAn apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty.
This article considers why other jurisdictions have passed legislation protecting apologies and how such legislation has impacted or is likely to impact on the law of civil liability as it operates in the current social context. It asks what lessons can be learned about the likely impact of section 2 of the Compensation Act from the literature and the, so far relatively brief, experience of other jurisdictions.
In 1986, the US state of Massachusetts enacted the first legislative protection of apologies designed to prevent the admissibility in court of an expression of regret for the purpose of determining liability in tort. That provision was relatively short. It stated:
Massachusetts General Laws Tit II Ch 233, s 23D.
Statements, writings or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident and made to such person or to the family of such person shall be inadmissible as evidence of an admission of liability in a civil action.
See for example S D Sugarman, “United States tort reform wars” (2002) 25
Characteristics of the provisions vary. The definition of apology used is either the “statement of regret or benevolent gesture” which stops short of admitting fault (a “partial” apology) or the “full” apology which includes an admission of fault. Most of the provisions protect only partial apologies. Some deem the apology not to be an admission of liability while others only limit admissibility in court. Some provisions directly prevent an apology from affecting insurance contracts. The Canadian provisions also prevent apologies from making time run under limitation acts. The scope of protection also varies. Many provisions in the United States restrict apologies to certain aspects of medical practice or to some other aspect of personal injury. In Australia some jurisdictions restrict them to certain areas of tort law.
Table 1, at the end of this article, outlines some of the characteristics of the legislative provisions. A full list of provisions can be found in table 2. As table 1 shows, the range of provisions protecting apologies is wide, but there is a core which prevents an apology from being regarded as creating liability whether directly or, indirectly, by preventing it from being admitted as evidence.
The Apology Act 2006 of British Columbia is the broadest provision in existence so far. It appears to have been modelled on legislation in New South Wales,
In
An apology made by or on behalf of a person in connection with any matter –
does not constitute an express or implied admission of fault or liability by the person in connection with that matter,
does not constitute a confirmation of a cause of action in relation to that matter for the purposes of section 5 of the Limitation Act,
does not, despite any wording to the contrary in any contract of insurance and despite any other enactment, void, impair or otherwise affect any insurance coverage that is available, or that would, but for the apology, be available to the person in connection with that matter, and
must not be taken into account in any determination of fault or liability in connection with that matter.
Despite any other enactment, evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any proceeding and must not be referred to or disclosed to a court in any proceeding as evidence of the fault or liability of the person in connection with that matter.
an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate.
Section 2 protects an apology from constituting an admission of fault, from making insurance contracts void, from being taken into account in the determination of fault, and from constituting a confirmation of a cause of action for the purposes of limitations provisions. It also prevents the evidence of an apology from being admitted into court or referred to or disclosed to the court. What is already a very broad provision is made even broader by the fact that the kind of apology protected is defined to include an acknowledgement of fault.
By comparison, the Compensation Act 2006, in England and Wales, merely protects an apology from constituting an admission of negligence or breach of statutory duty. It does not define “apology”. Thus, presumably the courts would turn first to a dictionary to find out to what the provision applies. The
The online version of the
The pleading off from a charge or imputation, whether expressed, implied or only conceived as possible; defence of a person, or vindication of an institution, etc., from accusation or aspersion.
Less formally: Justification, explanation, or excuse, of an incident or course of action.
An explanation offered to a person affected by one's action that no offence was intended, coupled with the expression of regret for any that may have been given; or, a frank acknowledgement of the offence with expression of regret for it, by way of reparation.
How apology is defined is important for the question of whether it has an impact on liability in negligence (or breach of statutory duty).
For the purposes of this article the term “negligence” will be taken to include breach of statutory duty. The Compensation Act 2006 specifically applies to both.
As table 1 shows, most jurisdictions which have enacted apology provisions for civil liability purposes provide a definition which falls into one of two groups. The most common definition of apology is as “an expression of regret” which falls short of an admission of fault. In such cases, only expressions of regret receive whatever legislative protection is available. A few jurisdictions have defined apology to include an admission of fault, including New South Wales, the Australian Capital Territory, and British Columbia.Civil Liability Act 2002s 68 (NSW); Civil Law (Wrongs) Act 2002 (ACT); Apology Act 2006 (British Columbia).
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