NZ fails on apology law

New Zealand is alone among peer nations and states in failing to have “apology legislation”, Auckland University senior lecturer Nina Khouri, told the NZILA conference.

The UK, more than 30 US states, all Australian states and territories, and almost all Canadian provinces had apology laws. It was “on its way” in Scotland and Hong Kong.

Ms Khouri said the lack of a NZ law was possibly because NZ’s Accident Compensation Corporation meant there was less personal injury litigation, but there was “clear empirical data” that apologies reduced litigation and encouraged “faster, cheaper, more meaningful dispute resolution”.
When things went wrong, plaintiffs wanted compensation, an explanation, accountability, and sometimes an altruistic desire to prevent similar incidents in the future. An apology could meet the latter three of their needs.

“An apology can be value creating. A satisfactory settlement will seem easier to achieve.” An apology could “unblock” potential settlement discussions.
But there were “legal impediments” in dispute resolution. An apology could be inadmissible at trial.
Ms Khouri said apology legislation created safe harbours for defendants who wanted to apologise, but not have an apology considered an admission of liability.

The Apology Act in Ontario, Canada, defined an apology as: An expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration. Whether or not the words or actions admit fault or liability or imply an admission of fault or liability in connection with the matter to which the words or actions relate.”

Victoria’s Wrongs Act defined an apology as “an expression of sorrow, regret or sympathy but does not include a clear acknowledgment of fault”.
Ms Khouri said in product liability cases, an apology could be “good for business and limit problems down the line”. A business may still need to compensate affected people or provide refunds, by a settlement “might be easier to negotiate”.

Whether an apology amounted to an admission of liability depended on the nature of the apology. She contrasted partial and full apologies. Saying ‘I’m sorry you feel that way’ was a pseudo apology and could be counter-productive. Psychologists said a full apology required remorse, responsibility, resolution and reparation.

In a 2003 High Court of Australia judgement, Dovuro Pty Ltd v Wilkins, Dovuro had imported canola seed from NZ that unknowingly contained weeds. Davoru wrote to affected growers and explained what had happened. The letter included the statement: “I'd like to stress this does not excuse Dovuro in failing in its duty of care to inform growers as to the presence of these weed seeds. We got it wrong ... and new varieties will not be brought on the market again in this manner.”

Dovuro also issued a media release that stated: “We apologise to canola growers and industry personnel. This situation should not have occurred.”
Despite the admissions, Dovuro was not liable. High Court Justice Bill Gummow said: “The so-called ‘admissions’ of officers of Dovuro provide no basis for a finding of negligence.”

However, in a dissenting minority judgement, Justice Michael Kirby said: “The various apologies, statements of regret and promises of improvement do not, as such, establish the claim of negligence against Dovuro. They were not ‘extorted’ from [Davuro] by the Wilkins or other growers. They were made defensively, ostensibly to show regret and out of self-interest. However, they are indisputably evidence relevant to the conclusion the primary judge was called upon to make in harmony with all the other testimony in the trial. They lent support to the Wilkinss' allegation of breach of the duty of care. That was the way the primary judge treated them. He was correct to do so.”

Ms Khouri said the decision on whether an apology was evidence of liability depended on the evidence. “It’s a matter for the court, not the defendant.”
She said NZ law was “messy” on apologies – some were protected by legal professional privilege, others were not, so lawyers were “right to advise caution”. NZ law had no blanket protection, so a specific law was needed.

Ms Khouri said arguments against apology legislation were that it cheapened or devalued the moral significance of an apology; encouraged insincere or tactical apologies; and was unfair to insurers.

She said plaintiffs wanted specific not boilerplate apologies. “That requires moral courage; it’s hard to admit you have done something wrong.”
Lawyers needed to “upskill clients to apologies, or accept an apology, the right way”.

Quoting Roger Fisher and William Ury’s 2011 publication Getting to Yes, Ms Khouri said: “An apology can be one of the most rewarding and least costly investments.”