Offering an apology does not automatically lead to legal liability


People, companies, institutions and governments who cause damage often do not apologize to the victims for fear of admitting liability. But this fear is unjustified, according to research by PhD student Lianne Wijntjens of Tilburg Law School.

The matter

When baby Luna dies ten days after her birth, her parents are convinced that big mistakes have been made. They file complaints against ten doctors at the Disciplinary Court for Health Care. In various interviews with the media, the mother of baby Luna indicates that she mostly missed an apology. Ultimately, the disciplinary court concludes that indeed, disciplinary culpable actions were taken. A measure is imposed on four doctors.

Winter sports enthusiasts who became infected with the corona virus in Austria at the beginning of March accused the Austrian government of not having locked the slopes and bars in time. In an interview with the media they indicated that they are concerned with excuses and not with money.

Need for excuses

These examples illustrate that victims need to receive apologies. And that is also evident from scientific research. In addition, apologies appear to facilitate victims’ recovery and de-escalate conflict.

Despite this, claimants often find it difficult to apologize, for fear of admitting liability and being stuck with difficult legal consequences. Prime Minister Rutte, for example, refused to apologize on behalf of the cabinet for the Dutch slavery past. And so Ajax director Edwin van der Sar only apologized for the club’s actions after footballer Nouri’s heart failure after it was announced that Ajax had acknowledged liability.

The research

But is the fear of admitting accountability by apologizing justified? Legal scholars have not yet agreed on this. Lianne Wijntjens therefore investigated how the offering of apologies can be impeded or, conversely, stimulated by legal proceedings.

Wijntjens focused on the civil procedure and the medical disciplinary procedure. The research consisted of a socio-psychological and legal literature review, a case law analysis of 3938 judgments, an observational study and an interview study.

The findings

Wijntjens concludes that apologies only apply under very specific circumstances and in very rare cases as an acknowledgment of civil liability. In addition, although apologies can be used as evidence in proceedings, judges appear to deal with this in a very nuanced way. They do not attach decisive importance to excuses. In fact, offering apologies is actually encouraged in various ways. Apologizing is rewarded, while failure to apologize is punished.

Conclusion

In short, says Wijntjens, the legal risks of offering an apology, if there are any, are dwarfed by the positive effects. Not only do apologies generally have positive consequences for the victim, they are regularly considered in favor of the provider in the judgment of the civil and medical disciplinary courts. In order to accommodate those who nevertheless want to exclude all legal risks despite all this, Wijntjens advocates the introduction of an ‘explanation rule’. This rule of interpretation would mean that apologies should not be construed by the recipient as an admission of liability.

Source: Tilburg University

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