Professor Prue Vines Law School University of New South Wales.

Professor Prue VinesLaw School

University of New South Wales

New legislation protecting apologies and expressions of regretUS since 1986Australia since 2002Canada since 2006UK Compensation Act 2006 (England and

Wales)

Vines UNSW Law School Apologising for personal injury 2

The perceived problemThe apology as admission of liability

Leading to advice not to apologise ( assuming this itself increases litigiousness)

Voiding insurance contracts

Perception of increased litigation caused by the lsquocompensation culturersquo or lsquoblame societyrsquo


Second reading speechesWhen I was getting my drivers licence I was told that if I ever

had an accident and it was my fault I should never apologise as it could be taken to be an admission of guilt and I could be sued Australians are happy to apologise if they are at fault They try to work things out It is totally un-Australian not to apologise if one thinks that one has done something wrong (Brown NSW Legislative Assembly 2002)

HL Deb 27 Mar 2006 col 576 (Baroness Ashton of Upholland) ldquoThe Bill is an important contribution to a much wider programme of work The Government are taking forward many other important initiatives on which I am proud to lead to tackle perceptions of a compensation culturerdquo HC Deb 8 Jun 2006 col 419 (Bridget Prentice MP) ldquoAlthough a compensation culture does not exist in this country the perception that it does can have a real and damaging effect on peoplersquos behaviourrdquo


Increasing litigationResearch in Australia and the United Kingdom has not borne

this out see E Wright ldquoNational trends in personal injury litigation before and after lsquoIpprsquordquo (2006) 14 Torts Law Journal 233 R Lewis A Morris and K Oliphant ldquoTort personal injury claims statistics is there a compensation culture in the United Kingdomrsquo (2006) 14 Torts Law Journal 158

Both articles acknowledge an increase in litigation rates in the thirty years to the 1990s but little increase per capita after that However the cost of claims particularly the biggest damages awards for catastrophic injury has increased dramatically partly because of wage rises for nursing and similar professions and because of increased life expectancy of catastrophically injured people

Similar for medicine ndash increase in litigation but reduction in rate compared with number of medical interventions


What affects propensity to sueThe literature suggests that propensity to sue

for personal injury is affected by

the status of the plaintiffpursuer the costs rules (the more favourable to

plaintiffs the more likely a person is to sue) the existence of jury trials and the cultural view of risk and blame


Why apologisePerception that it is the natural and moral

thing to dofunctions

-reduce aggression (evolutionary psychology)

-create or reinstate moral community

-part of culture of risk and blame


Quick asideThere is considerable doubt about whether

apologies even with acknowledgement of fault do amount to admissions of liability especially in negligence (eg Dovuro)

If that is the case then they also wonrsquot void insurance contracts etc


The legislationApology is not admission

Not admissible

Protects insurance

Includes acknowledgement of fault

UK

NSW

Queensland

British Columbia


UK Compensation Act s 2An apology an offer of treatment or other

redress shall not of itself amount to an admission of negligence or breach of statutory duty

(applies to England and Wales not Scotland)


British Columbia Apology Act 2006(1) An apology made by or on behalf of a person in connection with any

matter ndash(a) does not constitute an express or implied admission of fault or

liability by the person in connection with that matter(b) 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(c) 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

(d) must not be taken into account in any determination of fault or liability in connection with that matter

(2) 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


BC Apology Act 2006Section 1 defines ldquoapologyrdquo as 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


Problems with the expression of regret versionTo summarise if you say to someone I am sorry that is

not a clear acknowledgment of fault but if you say to someone I am sorry It is all my fault then the apology provision is rendered inoperative The Australian Medical Association amongst others has expressed the view that this sort of highly qualified highly restrictive drafting is not calculated to encourage the outcome the government seeks to achieve The AMA believes doctors amongst others are going to be very cautious in trying to take advantage of these provisions because of their limited nature

Mr Clark NT Legislative Assembly 2002

AND psychological evidence that expression of regret is more likely to make people angry and aggressive


Medical adverse events and apology the Australian Open Disclosure ProjectAustralian Commission for Safety and Quality

in Health CareNow in the process of being applied across

many Australian states

Over ndash New York Times




But note this (p 11 of Open Disclosure Guidelines NSW Health) 3 Offering an apology Offering an apology or expressing regret is a key component of the open

disclosure process The apology should include an expression of sorrow for the harm done to the

patient but it must not be an admission of liability Staff must be careful not to

make any verbal or written statement that admits liability An admission of liability means

admitting that the hospital or a staff member breached their duty of care to the patient which

led to the patient suffering harm or injury An apology 1048707 does not blame the health facility for harm caused to the patient 1048707 does not blame a clinician for harm caused to the patient 1048707 does not blame the Health Service for harm caused to the patient 1048707 does not indicate that the incident could have been avoided


Continuing p 11Examples of apologiesThe following statement does not admit liability It provides facts but

no conclusions1048707 ldquoYour husband John was given an injection of penicillin shortly before hisdeath There were notes in his medical records that he was allergic topenicillin but the person who gave the injection did not see the notes We

aresorry about this incidentrdquo The following statement admits liability by admitting breach and

causation Duty should not be an issue in an apologyldquoThe nurse knew your husband John was allergic to penicillin because it iswritten all over the notes but she gave him the injection by mistake thatcaused him to have an anaphylactic reaction from which he could not beresuscitated We are very sorry about this incidentrdquo


NHS Redress Act s 3(2) 2006redress is ldquoordinarily to compriserdquo (a) the making of an offer of compensation in

satisfaction of any right to bring civil proceedings in respect of the liability concerned

(b) the giving of an explanation(c) the giving of an apology and(d) the giving of a report on the action which has been

or will be taken to prevent similar cases arising

The scheme enables ldquoredress to be provided without recourse to civil proceedingsrdquo in circumstances where tortious liability might arise in relation to health services ldquoApologyrdquo is undefined


The big problemNot knowing what the law is

eg medical practitioners in a recent survey by Salem and Forster (in

2008)of NSW General Practitioners 71 had not heard of the Civil Liability Act59 thought litigation had increased in last

5 years ( it had dramatically reduced)82 said their fear of lawsuits substantially

lessened their enjoyment of medicine


Open disclosurersquos single standard for apologies is a bad standard (as is NHS Redress)

May make things worse


Lawyers and insurersNot knowing the law properly about

apologies and admissions etc before such apology-protecting legislation is passed

Not knowing the legislation exists when it is passed

Not changing practices of advice etcTherefore undermining the purpose of the

law


New legislation protecting apologies and expressions of regretUS since 1986Australia since 2002Canada since 2006UK Compensation Act 2006 (England and

Wales)
































Not admissible

Protects insurance


UK

NSW

Queensland

British Columbia




























































law
































Not admissible

Protects insurance


UK

NSW

Queensland

British Columbia




























































law




























































law


Professor Prue Vines Law School University of New South Wales.

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