Sorry seems to be the hardest word

In 1974, suburban Massachusetts, a young girl named Claire Saltonstall was hit and killed by a car while riding her bicycle near her family home. The driver who struck her did not apologise to her grieving family. Her father, William L Saltonstall, a state senator, was angry that the driver had not expressed any form of remorse. Years later he was told that the driver had not dared risk apologising, because he feared that it could have constituted an admission in the litigation surrounding the girl’s death.

Upon his retirement, the senator and his successor presented the legislature with a bill designed to create a “safe harbor” for would-be apologisers. This was the first tentative step, which has since resulted in over 35 US states and many nations around the world, including Australia, Canada and New Zealand, to quietly and successfully implement innovative and effective apologies legislation.

The Apologies (Scotland) Bill proposes to introduce into Scotland the evidentiary rule that “apologies” cannot be led in evidence as admissions of liability in certain civil proceedings. Proposed as a member's bill in the Scottish Parliament by Margaret Mitchell MSP, it aims to provide a more secure remedy when what the complainer seeks, above all else, is an apology. While it is easy to view clients' assertions of “It’s the point of principle”, or “It’s not about the money”, with cynicism and sometimes disbelief, the use of apologies as a way of resolving disputes is slowly becoming recognised as offering an opportunity to avoid the adversarial system.

The 2012 Scottish Parliament Study of Medical Negligence Claims in Scotland found that: “Pursuers felt that the NHS would never admit what had really happened and that their complaint would not be listened to, and so making a legal claim was inevitable.”

The increased implementation of apologies laws within liberal legal systems has gone largely unnoticed in 21st century Scotland. Legislation has been enacted as part of an attempt to make the civil justice system more accessible, affordable and effective. It is important when considering the utility of an apology to stress that is it not always going to be a complete redress, and by itself will not necessarily achieve corrective justice. However, an Apologies Bill can serve as a meaningful part or whole of the redress, shifting the balance and enabling more amicable solutions.

Clarification first

The Scottish bill should be seen more as a clarification of existing law to give certainty to individuals that an apology will not be construed against them. In Scotland an apology in itself will currently not amount to an admission of liability, particularly in relation to negligence, as liability is a legal conclusion, which courts will always have to draw themselves. For example, in Muir v Glasgow Corporation 1943 SC (HL) 3, Lord Thankerton stated that the court was not to give undue weight to expressions of regret or retrospective apologies for not taking certain steps which would have avoided the accident. It remains regrettable that lawyers continued to advise their clients to remain silent, with most lawyers advising their clients to make no statement at all in case the apology went further than a sympathetic utterance.

The hallmarks of an apology are the words “I’m sorry.” Saying sorry sounds easy enough, but
what actually constitutes an apology is slightly more complex, as the way in which an
apology is given can enact a multitude of different responses. Put succinctly, not all apologies
are created equal, therefore it must be asked why some apologies succeed in reconciling
differences and some are ignored or rejected.

Academic literature has divided apologies into two rough categories. Partial apologies denote a general feeling of regret that a given event happened without further explanation. For example, “I am sorry that you were hurt has a result of A.” A full apology is more than an expression of regret or sorrow and involves an acknowledgment of wrongdoing and acceptance of blame. For example, “I am sorry that you were hurt as a result of A; this was due to my inability to do B.” The fields pre-eminent academic Professor Prue Vines of the University of New South Wales and the vast majority of literature strongly assert the importance of giving full apologies, citing a multitude of sociological and legal studies highlighting their efficacy in dispute resolution.

Crucially, the Apologies (Scotland) Bill will not apply to criminal proceedings, nor will it apply to fatal accident inquires or defamation proceedings. The bill does not legislate apology in the sense of commanding it, nor, crucially, does it transfer the making of an apology into a means of avoiding liability altogether. Its raison d'être is to enable apologies by making them inadmissible for the purposes of proving liability or confirming a cause of action. Liability can still be proven and the cause of action confirmed by all the normal means. Additionally, it is important to note that the bill has no effect on an apology’s relevance or admissibility for the purpose of assessing damages.

Beneficial effects

The efficacy of an apology should not be underrated. Jennifer Robbennolt, Professor of Law and Psychology, University of Illinois College of Law noted that “contemporary empirical research has… generally found that apologies influence claimants’ perceptions, judgments, and decisions in ways that are likely to make settlements more likely – for example, altering perceptions of the dispute and the disputants, decreasing negative emotion, improving expectations about the future conduct and relationship of the parties, changing negotiation aspirations and fairness judgments, and increasing willingness to accept an offer of settlement”.

The bill was motivated by a desire to facilitate apologies and mitigate disputes. In doing so the bill will reduce litigation. Studies in the United States, most prominently at the University of Michigan Health System and the Veterans Affairs Medical Centre in Kentucky, have demonstrated that apologies and disclosure can significantly reduce litigation and increase patient satisfaction.

In Scotland this should reduce pressure on the NHS. The increase in compensation payments made by NHS Scotland through the clinical negligence and other risks indemnity scheme (CNORIS) is staggering. Payments have risen from £1.6 million in 2000-01 to £58.24 million in 2010-11. This represents an increase of 3,640% in just 10 years, or the equivalent of an extra 3,100 nurses being employed by the NHS. However, these figures only represent the tip of the iceberg, as the cost of out of court settlements, lawyers' fees, negotiations, lost time, insurance and all the other ancillary costs will tower over these figures and undoubtedly represent a major hidden drain of NHS funding.

The costs of litigation are not only measurable in financial terms. For example, a landmark study by Symon reported that doctors’ involvement in litigation resulted in extreme stress, depression, anger, insomnia, and less frequently alcohol abuse, physical illness such as gastrointestinal symptoms, and suicidal inclinations, with some citing litigation as their most stressful life experience. When interfacing with the adversarial and contentious paradigm of delict law, midwives can abreact and suffer emotional, physical and psychological harm. In a recent study conducted at Manchester University, one midwife described the stressful experience of appearing in court as: “The most traumatic event in my life to date. I would equate it to worse than the death of my mum… I am wearing a wig today because my hair started falling out as a result.”

The deleterious effects of litigation on both patients and clinicians have prompted calls for
reform, but to date suggestions for a “no fault” scheme have been rejected and the Government
has failed to implement a redress scheme, providing an alternative to litigation for low value
claims. The Apologies (Scotland) Bill therefore appears to be the answer.

Apologies are no panacea. Ultimately it has to be conceded that while legislation can address the legal consequences of apologies, it cannot compel their mirror image, forgiveness. The problems are not insurmountable, but injections of enthusiasm and compromise will be necessary to allow for its effective implementation. I accordingly urge the Scottish legal profession to look upon this bill with an open mind.