What apology laws do

The problem these laws address

An apology can sound like an admission. Apology laws change how a court may treat it. They do not stop a court finding fault on the rest of the evidence. The NSW Ombudsman's guide says making an apology does not prevent someone otherwise being found at fault and liable ⁶.

The same guide says statutory protection deals with only one of the barriers to apologising. It says the others must be handled through management, with a strong ethical culture and openness about mistakes ⁶.

Three ways the laws work

• Not an admission. Section 2 of the Compensation Act 2006 says an apology, an offer of treatment or other redress shall not of itself amount to an admission of negligence or breach of statutory duty. It extends to England and Wales ¹.
• Not admissible. The Scottish Act says an apology made outside the proceedings is not admissible as evidence of anything relevant to the determination of liability. It cannot be used in any other way to the prejudice of the person who made it ².
• Not relevant and no effect on insurance. Manitoba's Apology Act says an apology is not an admission of fault or liability and must not be taken into account in deciding fault. It does not void or impair insurance coverage, even where the insurance contract says otherwise ⁴.

What counts as an apology

Definitions are wide. Scotland defines an apology as any statement made by or on behalf of a person which indicates that the person is sorry. It covers an undertaking to look into the circumstances so the event does not happen again ².

Manitoba covers an expression of sympathy or regret, a statement that one is sorry, or other words or actions indicating contrition or commiseration. It applies whether or not the words admit or imply fault ⁴.

New South Wales defines an apology as an expression of sympathy or regret, or of general benevolence or compassion, connected to a matter. It counts whether or not it admits or implies fault ⁵.

Where the protection stops

• Scotland excludes criminal proceedings, defamation proceedings, inquiries under the Inquiries Act 2005, fatal accident inquiries and Children's Hearings ³.
• Scotland excludes registration and fitness to practise proceedings of listed regulators, such as the General Medical Council and the Nursing and Midwifery Council ³.
• The Scottish Act does not apply to an apology made under the health and care duty of candour procedure ³.
• The NSW apology Part does not apply to defamation. Section 20 of the Defamation Act 2005 deals with apologies in defamation cases ⁵. The NSW Ombudsman says the Act has no effect in criminal proceedings ⁶.
• Facts said with an apology can still count. In an appeal from the Local Court, cited as 2020 NSWSC 1445, the Supreme Court of NSW held that the words "I didn't see you" should not have been disregarded on liability. The opening words of apology were conceded to be protected ⁵.

United States: sympathy, fault and health care

US apology rules are state laws and they differ. Massachusetts makes statements, writings or benevolent gestures expressing sympathy to an accident victim or the family inadmissible as evidence of an admission of liability in a civil action ⁷. The section does not mention statements of fault ⁷.

Washington goes further for health care providers. Statements expressing apology, fault, sympathy or commiseration are inadmissible in negligence claims if made within 30 days of the act or of its discovery ⁸.

Vermont protects an oral expression of regret or apology by a health care provider, including an oral good faith explanation of a medical error, made within 30 days. The provider cannot be examined on it by deposition. Information that is otherwise discoverable stays discoverable ⁹.