I\u2019ve installed speed humps in the driveway so that, in future, I\u2019ll never go fast enough to run over a cat.<\/em>\u201d Again, this is not an essential ingredient, but it powerfully reinforces the acceptance of responsibility, reassures the injured person that it will not happen again and, possibly, gives them hope that, because the suffering they encountered will not be inflicted on them again, or on anyone else, they have not suffered in vain. It seems to be particularly important in medical negligence cases.<\/li>\n<\/ol>\nSo, a full 1+2+3+4+5 apology is: \u201cI ran over your cat. It was my fault \u2013 I was speeding down the driveway. I apologise from the bottom of my heart. To make sure it never happens again, I\u2019ve installed speed humps in the driveway. Please forgive me.<\/em>\u201d<\/p>\nInterestingly, the legal definition of \u201capology<\/em>\u201d in New South Wales does not go nearly this far. Section 68 of the Civil Liability Act 2002 (NSW) defines \u201capology\u201d this way:<\/p>\n\u201cIn this Part \u2013 apology means an expression of sympathy or regret, or a general sense of benevolence or compassion, in connection with any matter whether or not the apology admits or implies an admission of fault in connection with the matter<\/strong>.\u201d (emphasis added)<\/p><\/blockquote>\nWe might regard the Civil Liability Act s. 68 definition as articulating the bare minimum necessary to constitute an apology, while contemplating that some apologies will go further by expressly or impliedly admitting fault. Section 69 of the Act then provides that an apology does not constitute an admission of fault or liability, is not relevant to the determination of fault or liability, and is not admissible in any civil proceedings as evidence of fault or liability.<\/p>\n
Section 20 of the Defamation Act 2005 (NSW) makes similar provision about the effect of apologies in defamation proceedings, but that act does not define \u201capology\u201c, nor does the Interpretation Act 1987 (NSW).<\/p>\n
Some apparent apologies do not even go as far as the s. 68 bare minimum. Here is part of the statement posted by the Australian Broadcasting Commission on 31 May 2021 in relation to the discontinance of defamation proceedings brought against it and one of its reporters by the former federal Attorney-General Christian Porter:<\/p>\n
\u201cThe ABC did not intend to suggest that Mr Porter had committed the criminal offences alleged. The ABC did not contend that the serious accusations could be substantiated to the applicable legal standard \u2013 criminal or civil. However, both parties accept that some readers misinterpreted the article as an accusation of guilt against Mr Porter. That reading, which was not intended by the ABC, is regretted<\/strong>.\u201d (emphasis added)<\/p><\/blockquote>\nOne can assume that the terms of this statement were the subject of some hard negotiations between the parties\u2019 legal teams and that they represent the result of compromises by both parties. The ABC says that it did not intend to accuse Mr Porter of being guilty of criminal offences \u2026 but accepts that what it said was capable of being misinterpreted as doing that.<\/p>\n
But note the use of the passive voice, which makes it impossible to attribute the expression of regret to anyone in particular. The ABC did not<\/strong><\/em> say that it regretted the misinterpretation. Instead, it said \u201cthat reading \u2026 is regretted<\/em>\u201d. By whom, you ask? Was this \u201can expression of regret<\/em>\u201d by the ABC within the meaning of s. 68?<\/p>\nIf you start looking hard at \u201capologies<\/em>\u201d, armed with the criteria in this post, you will be amazed at how few actually are genuine apologies. Be alert for the most pernicious of all fake apologies, the very common insult-and-justification-masquerading-as-an-apology. This takes the form, \u201cSome people were so foolish as to take offence at my comments last week on [insert subject matter] and I\u2019m really sorry about that.<\/em>\u201d Many of Donald Trump\u2019s comments about his outrageous statements took this form.<\/p>\nThis sort of fake apology has none of the ingredients of an apology. It does not contain an admission that the speaker\u2019s comments were offensive, nor an apology for giving offence by making the comments. Instead, it insults the people who found the comments offensive by saying that they were foolish to have taken offence. It then redoubles the insult by saying that the speaker is really sorry that those people are so foolish \u2013 in other words, they are so foolish that they deserve pity for their foolishness. And, finally, note that the statement actually amounts to a justification of the comments \u2013 by saying that only really foolish people would have found them offensive \u2013 rather than an apology for making the comments.<\/p>\n
So now that your fake-apology-antennae are finely tuned, you are ready to go forth, detect and expose all those fake apologies out there!<\/p>\n
For further legal analysis, see Robyn Carroll, Apologies as a Legal Remedy<\/a>, (2013) 35(2) Sydney Law Review 317.<\/p>\n","protected":false},"excerpt":{"rendered":"Good mediators think a lot about apologies because they are always searching for things that a party can contribute to the settlement \u201cpie\u201d that may not cost that party much (or anything) but nonetheless have value in the eyes of the party receiving them. I have mediated disputes in which a party viewed an apology […]<\/p>\n","protected":false},"author":3,"featured_media":2188,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[39],"tags":[57,58],"_links":{"self":[{"href":"https:\/\/commercialmediationsydney.com.au\/wp-json\/wp\/v2\/posts\/2170"}],"collection":[{"href":"https:\/\/commercialmediationsydney.com.au\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/commercialmediationsydney.com.au\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/commercialmediationsydney.com.au\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/commercialmediationsydney.com.au\/wp-json\/wp\/v2\/comments?post=2170"}],"version-history":[{"count":5,"href":"https:\/\/commercialmediationsydney.com.au\/wp-json\/wp\/v2\/posts\/2170\/revisions"}],"predecessor-version":[{"id":3147,"href":"https:\/\/commercialmediationsydney.com.au\/wp-json\/wp\/v2\/posts\/2170\/revisions\/3147"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/commercialmediationsydney.com.au\/wp-json\/wp\/v2\/media\/2188"}],"wp:attachment":[{"href":"https:\/\/commercialmediationsydney.com.au\/wp-json\/wp\/v2\/media?parent=2170"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/commercialmediationsydney.com.au\/wp-json\/wp\/v2\/categories?post=2170"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/commercialmediationsydney.com.au\/wp-json\/wp\/v2\/tags?post=2170"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}