It was Elton John that sang the words “…oh it seems to me that sorry seems to be the hardest word..” What a great song. I am pretty sure Mr John was singing about unrequited love rather than legal claims but I just couldn’t resist making the connection. Sorry about that.
We all know that in life things do not always go to plan. Accidents involving motor vehicles, poor professional advice, cock-ups in hospitals and so on are part of everyday life.
So, what do we do when things go wrong and we are involved? The instant human reaction is to want to apologise. But, more often than not, people are worried about making an apology, particularly if they are insured and their insurance arrangements make it abundantly clear that if they make any admission of liability their insurance cover will go out of the window and they will be left uninsured to face the claim alone.
If you doubt what I am saying, may I remind you of the Thomas Cook inquest into the deaths of two young children on a Greek holiday whose senior representative steadfastly refused to apologise at the inquest. Do you think the person wanted to say sorry? Could it be that the representative felt that an apology would amount to an admission of liability? Were Thomas Cook’s insurers pulling strings behind the scenes? We will never know.
Now I am no psychology expert, far from it, but I have done my fair share of mediations and I know that a lack of an apology can stoke the fires of hell in the party that has been wronged. I have lost count of the number of times I have heard “if only he had said sorry at the start we wouldn’t be here now”. An apology is often a part of a mediated settlement so there is definitely something in this. Could it be that if a party that has committed a wrong apologised at an early stage, an escalation of the dispute might be avoided?
It seems that I am not the only person perturbed by the conceptual link between an apology and an admission of liability. My attention has recently been drawn to a pamphlet published by the NHS Resolution entitled “Saying Sorry”. The front page includes the following very wise words. “Saying sorry meaningfully when things go wrong is vital for everyone involved in an incident, including the patient, their family, carers, and the staff that care for them”. The pamphlet goes on to explain why, when, who and how the apology should be made. It is an excellent document and available at www.nhsla.com/claims/Documents/Saying%20Sorry%20-%20Leaflet.pdf . I am not sure who drafted the pamphlet but, whoever you are, well done!
So, does saying sorry amount to an admission of liability?
Well, The Compensation Act 2006 clearly states that “An apology, an offer of treatment or other redress, shall not of itself amount to an admission of negligence or breach of statutory duty”, so the answer seems to be no. But be careful – how you make the apology is clearly going to be important. An insurer may not be too bothered about you saying “I am sorry X, Y and Z happened” but will probably be upset with you if you say “I am sorry I caused X,Y and Z – it is entirely my fault”. Do you see the difference?
Even the making of an open offer to settle may not be seen as proof of guilt. The Court of Appeal in Amber v Stacey  ALL ER 88 addressed this issue in which it was said “The lesson is that an early and genuine apology can do much good at no cost.” But again, care needs to be taken in drafting any such offer.
Where does all this leave us? Well it seems obvious that if you are on the end of a claim, an early acknowledgement and apology is likely to take the heat out of an otherwise hostile situation. BUT. if you are insured, it always a good idea to get your Insurer to approve any apology you are intending to make before it is made – just to be sure!
So, Mr John, sorry doesn’t have to be the hardest word after all, or does it?
Peter Vinden is a practising Arbitrator, Adjudicator, Mediator and Expert. He is Managing Director of The Vinden Partnership and can be contacted by email at firstname.lastname@example.org. For similar articles please visit www.vinden.co.uk.