Apologies and liability

29 April 2019

Government and legislative bodies, Insurers and their members are becoming more aware of the effectiveness of an apology in resolving civil disputes before they become litigated.

Traditionally, an apology was viewed as an admission of guilt that courts may have seen as evidence for ruling in a claimant’s favour. However, there has yet to be a medical negligence case in which an apology was used as evidence and impacted liability.

Australian research shows that in the medical negligence area, apologies can have psychological benefits to a potential claimant and encourage the early resolution of grievances between a practitioner or service provider and a patient.

Anecdotal evidence suggests that often staff involved in a critical incident want to send condolences with a card or flowers and this assists in closure for them in what is often a traumatic event for all concerned.

Thinking about making an apology?

All States and Territories in Australia have legislation in place that will protect remorseful parties wanting to issue an apology in civil matters, ensuring that the apology will not be admissible in a related matter, provided that it satisfies the relevant apology definition.

Example definition of an apology

The Civil Liability Acts of New South Wales. South Australia and Tasmania all state:

apology means an expression of sympathy or regret, or of a greater sense of benevolence or compassion..”

Insurance policies

In certain circumstances, issuing an apology which may constitute an admission of liability could impact upon your insurance policy.

If you are unsure about how an apology should be worded then check with your medical indemnity insurer before proceeding.

This article was written by Alex Darcey, Partner and Michael Klapsis, Solicitor.

Alex Darcey

P: +61 3 6210 6209

E: adarcey@hwle.com.au

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