My apologies

A proposed legislative change will allow organisations to apologise without having to admit liability for a mistake. 

The second reading of the Apologies Bill is due to be heard on 5 March 2021. The legislation has been proposed by John Howell MP who believes it will help reduce the number of cases which result in court proceedings. 

In what is approaching 30 years of working in the personal injury sector for accident victims, I have yet to encounter a case where the outcome has been influenced by an earlier apology from the other party.

However, there’s nothing to prevent a party referring to an open apology in their witness evidence, so in theory an apology could play a part in the judicial thinking were a case to proceed to trial. 

The definition of apology is “a regretful acknowledgement of an offence or failure”, so you can understand why insurers may be reluctant for policy holders to issue apologies.

On this basis, the proposed legislation seems sensible and may well make for a more conciliatory and probably less expensive settlement process.

I am aware of a number of clients where the approach taken by the other party has caused a degree of annoyance and frustration, which they say has resulted in them seeking legal advice.

In discussions with colleagues in the clinical negligence team, the motives for pursuing a claim for damages does seem to be more heavily influenced by the absence of an apology and/or the perceived lack of regret from the treating medical professional.

It’s difficult to say how many people might not pursue litigation if an apology were received. However, it should not damage the possibility of there being no litigation, or a much more consensual approach to it.

I appreciate there’s the perception of a compensation culture, so would an apology make any difference? I do think an apology may well see the number of disputes fall. Government research on the issue of compensation culture, which it suggests is rife, found it was one of perception rather than reality.

In any event, for a party to succeed with, for example, a personal injury claim, they would still need to prove their claim in common law. This would require a party to show that the other party owed them a duty of care.

This is generally quite straightforward, with motorists owing a duty of care to other motorists; employers owing a duty of care to employees; and so on. 

Once this duty of care has been established, a party would then need to show a breach of duty of care and that they have suffered injury as a consequence.

To establish whether a breach has occurred, the court will apply the ‘reasonable person’ test, the applicable threshold differing from case to case and influenced by, for instance, industry standards, the expected levels of expertise of a party and the cost of steps that could have been taken to avoid or reduce the risks.

The Social Action, Responsibility and Heroism Act 2015 also allows for other factors to be taken into account, for example, whether someone was performing a task for the benefit of society, such as volunteering. 

The presence of an apology on the face of it should not prove persuasive in deciding the outcome of a dispute, however, the fact I have no experience of considering what weight an apology would make to a case seems to indicate they are not commonly forthcoming.

Overall, while there’s no guarantee dispute numbers would fall, an Apologies Act should not see an increase in numbers; and could start the process off on a more amicable – and subsequently less costly – footing. 

One final point of note is that section 2 of the Compensation Act 2006 states that “an offer of treatment or other redress shall not of itself amount to an admission of negligence or breach of statutory duty”.

So, do we not already have the legislation as effectively proposed in the Apologies Bill? If the current legislation is not working, then perhaps the wording of any new legislation needs to take this into account.

Steven Baylis is a partner at Lime Solicitors limesolicitors.co.uk

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