Apologising for Personal Injury in Law: Failing to Take Account of Lessons from Psychology in Blameworthiness and Propensity to Sue

Abstract

We know that the vast majority of people do not sue after personal injury. There is a significant literature on propensity to sue which relates it partly to the person's view of blame or attribution of responsibility. In many jurisdictions now there is legislation to protect apologies from becoming an admission of legal fault because of the perception that apologies are important to people's functioning. The psychological literature suggests that the psychological role of an apology is closely connected to the attribution of responsibility and that this plays out in a complex way to make apologies effective or ineffective within the psychological or legal context. This article explores how the legal regimes which seek to encourage apologies, (particularly in regimes of compensation for personal injury), have often failed to take account of the lessons that psychology has to offer in making apologies effective both psychologically and in reducing litigation.

Key words:

• admission
• apologies
• attribution of fault
• litigation
• personal injury
• propensity to sue

Notes

1. See W Haltom and M McCann, Distorting the Law: Politics, Media and the Litigation Crisis (University of Chicago Press, Chicago 2004); JK Robbenolt and CA Studebaker ‘News Media Reporting on Civil Litigation and its Influence on Civil Justice Decision Making’ (2003) 27(1) Law and Human Behavior 5. (This is US-based and therefore includes discussion of the influence on jurors. Juries are far less used in England and Australia for civil matters so influence on juries is of less interest in those jurisdictions.

2. Hazel Genn, ‘Who Claims Compensation?’ in Harris et al, Compensation and Support for Illness and Injury, (OUP, Oxford 1984) notes that 75% of injured people ‘never considered the question of damages at all, and of the quarter who did, only about half actually sought legal advice about claiming. Only 45% of those who considered the question of claiming damages ultimately obtained any damages, and of those who did seek legal advice, 80% obtained damages (albeit generally small amounts)’. This pattern may have changed somewhat but the proportions claiming seem to have stayed low: see Annette Morris, ‘Spiralling or Stabilising? The Compensation Culture and Our Propensity to Claim Damages for Personal Injury’ (2007) 50 (3) Modern Law Review 349, 360; R Lewis, A Morris and K Oliphant, ‘Tort Personal Injury Claims Statistics: Is there a Compensation Culture in the United Kingdom?’ (2006) 14 Torts Law Journal 158.

3. Deborah R Hensler et al, ‘Compensation for Accidental Injuries in the United States’ 122 (1991) cited in David M Engler, ‘Perception and Decision at the Threshold of Tort Law: Explaining the Infrequency of Claims’ (2012) 62 De Paul L Rev 293, 294; H Genn, Paths to Justice: What People Do and Think about Going to Law, (Hart Publishing, Oxford 1999) 52.

4. Richard Lewis and Annette Morris, ‘Tort Law Culture in the United Kingdom: Image and Reality in Personal Injury Compensation’ (2012) 3 J European Tort Law 1, 30.

5. Morris, ‘Spiralling or Stabilising?’ (n 2) 349, 360.

6. Genn, Paths to Justice (n 3) 52.

7. Australian Health Ministers Advisory Council (AHMAC) Legal Process Reform Group, chaired by Professor Marcia Neave, Responding to the Medical Indemnity Crisis: An Integrated Reform Package, 2002 (hereafter ‘AHMAC Report’) at [3.25].

8. H Kritzer ‘The Antecedents of Disputes: Complaining and Claiming’ (2011) 1 (6) Oñati Socio-Legal Series; see also M Galanter, ‘Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) about our Allegedly Contentious and Litigious Society’ (1983) 31 UCLA L Rev 4; H Kritzer, ‘Propensity to Sue in England and the United States of America: Blaming and Claiming in Tort Cases’ (1991) 18 Journal of Law and Society 400; H Kritzer, W Bogart and N Vidmar, ‘The Aftermath of Injury: Compensation Seeking in Canada and the United States’ (Institute for Legal Studies, University of Wisconsin-Madison Law School, 1990); DM Studdert et al, ‘Negligent Care and Malpractice Claiming Behavior in Utah and Colorado’ (2000) 38 Medical Care 250; J Fitzgerald, ‘Grievances, Disputes and Outcomes: A Comparison of Australia and the United States’ (1983) 1 Law in Context 15; Hensler et al, ‘Compensation for Accidental Injuries’ (n 3); HR Burstin et al, ‘Do the Poor Sue More? A Case Control Study of Malpractice Claims and Socioeconomic Status’ (1993) 270 Journal of the American Medical Association 1697; Harris et al (n 2); FC Dunbar and F Sabry, ‘The Propensity to Sue: Why do People seek Legal Action?’ (NERA Economic Consulting, 2007).

9. Dunbar and Sabry (n 8) 17.

10. Civil Law (Wrongs) Act 2002 s 12–14; Civil Liability Act 2002 (NSW) ss 67–69; Personal Injuries (Liabilities and Damages) Act (NT) ss 11–13; Civil Liability Act 2003 (Qld) ss 68072D; Civil Liability Act 1936 (SA) s 75; Civil Liability Act 2002 (Tas) ss 6A–7; Wrongs Act 1958 (Vic) ss 14I–14L; Civil Liability Act 2002 (WA) ss 5AG.

11. Compensation Act 2006 (England and Wales).

12. Apology Act 2006 (British Columbia); Apology Act 2009 (Ontario); Apology Act (Manitoba); Alberta and Saskatchewan have incorporated their apology legislation into their Evidence Acts.

13. For example, Civil Liability Act 2002 (NSW) ss 68–69; Apology Act 2006 (British Columbia); Compensation Act 2006 (England and Wales) s 2.

14. US jurisdictions with medical malpractice provisions include Arizona (12–561), Colorado (Rev Stat 13-25-135 (2003)), Connecticut Gen Stat Ch 899 tit 52 § 184d), Delaware (Ann tit 10 Ch 43 § 4318, Georgia (Ann tit 24 ch 3 § 37.1 (2005)), Louisiana ((Rev Stat Ann § 3715.5 (2005), Oregon (Rev Stat § 677.082 (2003) and many others. Some US jurisdictions (but many fewer) have more general apology laws, eg Hawaii (Rev Stat § 626-1 (2007)), Indiana (tit 34 §§ 43-5-1-1 – 45-5-1-5 (2006)), Missouri ((tit 36 ch 538 § 229 (2005).

15. Mr Matt Brown (Kiama), Hansard, NSW Legislative Assembly, 30 October 2002, p 6244.

16. Mr Bob Carr, Premier of New South Wales, Hansard, NSW Legislative Assembly, Article No 12, 23 October 2002, 5764.

17. Mr Len Kiely, Member, Legislative Assembly, Northern Territory, Northern Territory Legislative Assembly Hansard, Debates, Ninth Assembly, First Session, 18 February 2003, Parliamentary Record No 10.

18. For example, Qld: s 72C: ‘An apology is an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter, whether or not it admits or implies an admission of fault in relation to the matter’; Apology Act 2006 (British Columbia); General Statute Ch 899 tit 52, § 184d (Connecticut); Code Ann tit 24 ch 3 § 37.1 (2005) (Georgia); Rev Code § 5.64.010 (2006) (Washington).

19. For example, Tasmania: s 7(3) ‘In this section apology means an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter, which does not contain an admission of fault in connection with the matter’.

20. For example, Rev Stat 13-25-135 (2003) (Colorado); Code Ann Tit 10 Ch 43 § 4318 (2006) (Delaware); Code Ann [Cts and Jud Proc] tit 10(9) § 920 (2004) (Maryland).

21. For example, California, Massachusetts, Florida, Tennessee, Texas, Washington, British Columbia, UK.

22. This is the wording of the New South Wales, Queensland, Tasmanian and Western Australian provisions; British Columbia's legislation is very similar.

23. Northern Territory, Australia wording.

24. The Apology Act 2006 of British Columbia, Canada is the broadest provision in existence so far. It provides:

(1) an apology made by or on behalf of aperson in connection with any matter

(a) does not constitute an express orimplied admission of fault or liabilityby the person in connection with thatmatter;

(b)does not constitute a confirmation ofa cause of action in relation to thatmatter for the purposes of section 5of the Limitation Act;

(c)does not, despite any wording to thecontrary in any contract of insuranceand despite any other enactment,void, impair or otherwise affect anyinsurance coverage that is available,or that would, but for the apology, beavailable to the person in connectionwith that matter; and

(d) must not be taken into account in anydetermination of fault or liability inconnection with that matter;

(2) despite any other enactment, evidence ofan apology made by or on behalf of aperson in connection with any matter isnot admissible in any proceeding andmust not be referred to or disclosed to acourt in any proceeding as evidence ofthe fault or liability of the person inconnection with that matter.

Section 1 defines ‘apology’ as ‘an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate’.

25. Prue Vines, ‘Apologies and Civil Liability in the UK: A View from Elsewhere’ (2008) 12(2) Edinburgh Law Review 200–230; Prue Vines, ‘Apologising to Avoid Liability: Cynical Civility or Practical Morality?’ (2005) 27(5) Sydney Law Review 483–505.

26. Prue Vines, ‘The Power of Apology: mercy, forgiveness or corrective justice in the civil liability arena’ (2007) 1 Journal of Public Space (available at http://epress.lib.uts.edu.au/ojs/index.php/publicspace/home); Prue Vines, ‘The protected apology as the modern response to the moral question at the heart of Donoghue v Stevenson: What if Stevenson had apologised?’ (2013) (3) The Juridical Review 483.

27. D Slocum, A Allan and M Allan, ‘An Emerging Theory of Apology’ (2011) 63 Australian Journal of Psychology 83–92.

28. Slocum et al (n 27) 90.

29. Paul Davis, ‘On Apologies’ (2002) 19 (2) Journal of Applied Philosophy 169; Nick Smith, ‘The Categorical Apology’ (2005) 36(4) Journal of Social Philosophy 473; Kathleen Gill, ‘The Moral Functions of an Apology’ (2000) XXXI (1) The Philosophical Forum 11; Louis Kort, ‘What is an Apology?’ (1975) 1 Philosophical Research Archives 78; Jennifer Robbenolt, ‘Apologies and Settlement Levers’ (2006) 3 Journal of Empirical Legal Studies 333 and ‘Apologies and Legal Settlement: An Empirical Examination’ (2003) 102 Michigan Law Review 460; Russell Korobkin and Chris Guthrie, ‘Psychological Barriers to Litigation Settlement: An Empirical Approach’ (1994) 93 Michigan Law Review 107; Steven Scher and John Darley, ‘How Effective are the Things People Say to Apologize? Effects of the Realization of the Apology Speech Act’ (1997) 26 Journal of Psycholinguistic Research 127.

30. Nicholas Tavuchis, Mea Culpa: A Sociology of Apology and Reconciliation (Stanford University Press, 1991) 39.

31. In this paper the term ‘full apology’ means one acknowledging fault, and ‘partial apology’ means a mere expression of regret without such an acknowledgement. This terminology is more common than the way Nick Smith uses the terms. Nick Smith's ‘categorical apology’ has nine elements which he sees as necessary for the apology to be truly meaningful, see ‘Categorical Apology’ (n 29) 473.

32. Aaron Lazare, On Apology (OUP 2004) 23.

33. N Smith, I was Wrong (CUP 2008) 28–96.

34. Robbenolt, ‘Apologies and Legal Settlement’ (n 29) 460.

35. Elaine Walster and G William Walster, ‘Equity and Social Justice’ (1975) 31 Journal of Social Issues 21; Elaine Walster, E Berscheid and G William Walster, ‘New Directions in Equity Research’ (1973) 25 J of Personality and Social Psychology 151.

36. M Bennett and D Earwaker, ‘Victims’ Responses to Apologies: The Effects of Offender Responsibility' (1994) 134 J Soc Psychology 450.

37. Erving Goffman, Relations in Public: Microstudies of the Public Order (Basic Books, New York 1971).

38. Gill (n 29) 11.

39. This is regarded by evolutionary psychologists as a way of showing reliability of an effect: for example, peacocks‘ tails are very showy but also something of a handicap – they are costly. Similarly an apology which is costly to the maker seems more reliable both as evidence that the apologiser will not offend again and that the offence is not part of his or her ’real character‘: Erin O’Hara and Douglas Yarn, ‘On Apology and Consilience’ (2002) 77 Washington Law Review 1121, 1163; Jonathan Cohen, ‘Advising Clients to Apologize’ (2002) 72 Southern California Law Review 2009; however, in Robbenolt's studies, participants did not distinguish between statutorily protected apologies and those which were not, and the difference did not affect plaintiffs‘ willingness to settle nor their attribution of responsibility, see Robbenolt, ’Apologies and Legal Settlement' (n 29) 460.

40. Ken-ichi Ohbuchi, Masuyo Kameda and Nanyuki Agarie, ‘Apology as Aggression Control: Its Role in Mediating Appraisal of and Response to Harm’ (1989) 56(2) J of Personality and Social Psychology 219; Matthew Whited, Amanda Wheat and Kevin Larkin, ‘The Influence of Forgiveness and Apology on Cardiovascular Reactivity and Recovery in Response to Mental Stress’ (2010) 33 J of Behavioral Medicine 293–304.

41. Robbenolt, ‘Apologies and Legal Settlement’ (n 29) 495.

42. Bennett and Earwaker (n 36) 457.

43. Robbenolt, ‘Apologies and Legal Settlement’ (n 29) 495.

44. Robbenolt, ‘Apologies and Legal Settlement’ (n 29) 460 in a study of a bicycle and pedestrian collision. Similar findings were made in Kathleen Mazor et al, ‘Disclosure of Medical Errors: What Factors Influence How Patients Respond?’ (2006) 21 Journal of General Internal Medicine 704–710 and ‘Health Plan Members’ Views about Disclosure of Medical Errors' (2004) 140 Annual Internal Medicine 409–423.

45. Robbenolt, ‘Apologies and Legal Settlement’ (n 29) 515.

46. This point is reinforced by R Fehr and M Gelfand, ‘When Apologies Work: How Matching Apology Components to Victims’ Self-construals Facilitates Forgiveness' (2010) 113 Organizational Behavior and Human Decision Processes 37–50.

47. Thomas Gallagher et al, ‘US and Canadian Physicians’ Attitudes and Experiences Regarding Disclosing Errors to Patients‘ (2006) 166 (15) Archives of Internal Medicine 1605–1611; Omar Salem and Christine Forster, ’Defensive Medicine in General Practice: Recent Trends and the Impact of the Civil Liability Act 2002 (NSW)‘ (2009) 17 Journal of Law and Medicine 235, 247ff; Linda Mulcahy, Disputing Doctors (Open University Press, Berkshire 2003); AG Lawthers et al, ’Physicians‘ Perception of the Risk of Being Sued’ (1992) 17 J of Health Politics, Politics and Law 463–82. Indeed the evidence is that the fear is quite disproportionate to the actual risk: RM Lamb, DM Studdert, R Bohmer, D Berwick and T Brennan, ‘Hospital Disclosure Practices: Results of a National Survey’ (2003) 22(2) Health Affairs 73–83.

48. Mulcahy (n 47); Gallagher et al (n 47) 1605–1611.

49. Marilyn Wei, ‘Doctors, Apologies and the Law: An Analysis and Critique of Apology Laws’ (2007) 40 Journal of Health Law 107; Lamb et al (n 47) 73–83.

50. Nancy Berlinger, After Harm (Johns Hopkins University Press, Baltimore 2005) ch 2.

51. Dovuro Pty Ltd v Wilkins (2003) 201 ALR 139 (High Court of Australia); Vines, ‘Apologies and Civil Liability in the UK’ (n 25) 200–230.

52. Jeffrey Helmreich ‘Does “Sorry” Incriminate? Evidence, Harm and the Meaning of Apologies’ (2012) 21 Cornell Journal of Law and Public Policy 567.

53. Jennifer Robbenolt, ‘Apologies and Medical Error’ (2009) 467 Clinical Orthop Relat Res 376; DT Miller, ‘Disrespect and the Experience of Injustice’ (2001) 52 Ann Rev Psychology 527 shows the perception that insincere apologies can create even greater indignation.

54. D Studdert, D Piper and R Iediema, ‘Legal Aspects of Open Disclosure II: attitudes of health professionals’ (2010) 93 (6) Medical Journal of Australia 351.

55. Robbenolt, ‘Apologies and Medical Error’ (n 53) 376–82.

56. Jonathan Cohen, ‘Apology and Organizations: Exploring an Example from Medical Practice’ (2000) XXVII Fordham Urban Law Journal 1447.

57. R Boothman et al, ‘A Better Approach to Medical Malpractice Claims? The University of Michigan Experience’ (2009) 2 Journal of Health Life Science Law 25–29.

58. L Jesson and PB Knapp ‘My Lawyer Told Me to Say I'm Sorry: Lawyers, Doctors and Medical Apologies' (2009) 35 William Mitchell Law Review 1410.

59. For example, the Brisbane Mater Hospital Group, ‘Australian Commission on Safety and Quality in Health Care’, Annual Report 2011/12 (Sydney 2012) 41.

60. B Ho and E Liu ‘Does Sorry Work? The Impact of Apology Laws on Medical Malpractice’ (2011) 43(2) J of Risk and Uncertainty 141.

61. This is argued by Gabriel Teninbaum in ‘How Medical Apology Programs Harm Patients’ (2011) Suffolk University Law School Research Paper Series. The concern is that a really sophisticated open disclosure program may work really as a sort of ‘con job’, ‘cooling the mark out’ so that the hospital does not get sued and the patient does not get compensation. This may be an issue in some programs, but others (for example, the Lexington Veteran's Hospital) ensure patients also get legal advice which would seem to reduce this concern. The fact that patients may get less money for compensation may reflect the fact that if there is no litigation, costs will be much less, so the amount of money actually available to the patient may be the same.

62. Ho and Liu (n 59) 141, 180 suggest the reduction is generally between 10 and 15%.

63. Discussed in Vines, ‘Apologies and Civil Liability in the UK’ (n 25) 200–230, 205.

64. New South Wales, the Australian Capital Territory and Queensland.