Apologies: Do they amount to admissions of liability?

May 6, 2010

Government bodies, companies, businesses and individuals are increasingly becoming more aware of the effectiveness and the healing function of apologies in disputes. Traditionally, such bodies and individuals have shied from offering apologies, to avoid the situation where an apology is perceived as an admission of guilt and hence attract penalties from the court.

In recognition of the social role of an apology, the Victorian legislature has taken steps to offer limited protection for those who make an apology. Section 14J of the Wrongs Act provides that an apology does not constitute an admission of liability, or an admission of unprofessional conduct, carelessness, incompetence or unsatisfactory professional performance, for the death or injury of a person in a civil proceeding. However, the protection does not extend to situations where the apology admits fault (Section 14I Wrongs Act), and further the apology can be admitted with respect to a fact in issue or tending to establish a fact in issue.

The High Court examined the implications of apologetic statements in the case of Dovuro Pty Ltd v Wilkins (2003). In that case, Dovuro offered a full apology and admitted fault. The Court held that the admissions have no effect for a finding of negligence as the question of negligence is for the court to determine. They held however that those admissions of fact could go towards the question of liability at Common Law.

Some commentators have suggested that the current Victoria legislative provisions are ineffective, and that they do not serve the role for which they were intended. Some suggest that an effective apology requires an acknowledgement of fault rather than merely an expression of regret. New South Wales and the Australian Capital Territory are the only jurisdictions in Australia which offer protection for apologies that include an admission of fault.

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