Alan Cameron | Senior Associate

‘Sorry’ Shouldn’t be the Hardest Word

Many people fear that saying ‘sorry’ may be the wrong thing to do, as it may open up possible presumptions of responsibility and potentially put a target on them. However, if they feel they have no other recourse, the lack of an apology can lead to people raising court actions.

The Apologies (Scotland) Act 2016, that came into force on 19 December 2016, states that an apology (outside of legal proceedings) is not an admission of liability.

In terms of the Act, an apology is defined as:

  1. an acknowledgement of an act, omission or outcome;
  2. any statement made by or on behalf of a person indicating that the person is sorry about, or regrets said outcome; with
  3. an undertaking to review the circumstances which caused the act, omission or outcome with a view to preventing it happening again.

The aim of this legislation is to change the attitude of public services and encourage a greater willingness for them to apologise when things have gone wrong. The Act reassures medical professionals that apologies are not admissions of legal liability; rather, it is hoped that medical professionals understand the ethical imperative to apologise when something has gone wrong. The Medical Defence Union says that “a sincere and frank apology and explanation can help restore a patient’s confidence in their doctor following an error and help to rebuild trust.

The Act affects drivers as well as doctors. At Jackson Boyd we commonly hear of a third party driver instinctively apologising following a road traffic accident. Before the Act’s introduction, a statement made by a driver in road traffic accident, if expressed incorrectly, could sound more like an admission of liability rather than an apology. Now with the Act in place, apologies can be freely given and received in conversation by either party, and will not constitute an admission of fault.

The impact of the legislation will extend beyond apologies given following road traffic accidents or by medical professionals. In Boundary disputes for example a property owner may claim that they have less ground than they should have due to an incorrectly erected boundary fence. If their neighbour, on being confronted with this claim, says “oh, I’m sorry, I’ll get that sorted” only to subsequently realise that there is nothing wrong with the erected boundary fence, their apology will not be interpreted by the court as an admission of liability.

When something goes wrong, it is perfectly normal for the wronged party to want to understand the reasons why it happened so that they can get closure. Apologising is a normal and social way to put things right and this Act seeks to ensure that no one is penalised for apologising. Where apologies are given readily, some claims may be capable of being resolved at earlier stages. The introduction of this legislation may ultimately result in a reduction in the number of court action being raised but only time will tell.

Whether this legislation re-shapes public service providers’ attitudes and behaviours is yet to be proven. Owning up to mistakes is a big undertaking for any person, and in a profession dealing with the intimacies of daily life, recognition of and apologies for wrong-doing may still not flow so freely or easily. Even when apologies are offered, their authenticity and sincerity may be dubious or outside the scope of the Act.

In any event many individuals, who have suffered injury or loss, will be looking for more than just an apology. In these circumstances, Jackson Boyd can assist them in achieving the desired outcome. Please contact us online by clicking here or speak to a member of our specialist team on 0333 222 1855.

Alan Cameron

Alan Cameron

Dispute Resolution Team

“My motto is: ‘First they ignore you, then they ridicule you, then they fight you, and then you win.’”

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