The Apologies (Scotland) Act 2016 ("ASA") received Royal Assent in February 2016 and its substantive provisions come into force on 19 December 2016. The aim of the ASA is to change cultural and social attitudes towards apologising in Scotland. Essentially the ASA is aiming to make it easier for a party accused of wrong to issue an apology, without fear that it could be used in civil proceedings against them, as an indication of fault or admission of liability.
The ASA will apply to the majority of civil proceedings in Scotland, including personal injury and property damage claims. Exceptions include public inquiries brought under the Inquiries Act 2005 or Fatal Accident Inquiries, criminal proceedings, children's hearings and apologies made in accordance with the duty of candour procedure set out in the Health (Tobacco, Nicotine, etc and Care) (Scotland) Act 2016.
The ASA defines an apology as "any statement made by or on behalf of a person which indicates that the person is sorry about, or regrets, an act, omission or outcome and includes any part of the statement which contains an undertaking to look at the circumstances giving rise to the act, omission or outcome with a view to preventing a recurrence".
The potential impact on survivors of historic child abuse has been an integral part of the Act’s development which has been drafted with a view to ensuring that any claims for damages they bring will not be disadvantaged by the new law. Minister for Community Safety and Legal Affairs, Paul Wheelhouse, confirmed when the Bill was introduced that it "creates a climate where survivors of historic child abuse can receive acknowledgement and recognition through an apology, without being disadvantaged when pursuing claims for civil damages."
Earlier this year, Margaret Mitchell MSP, who introduced the Bill, reportedly said “Apologies legislation has been passed in other countries including the USA, Australia, Canada and New Zealand but the Apologies (Scotland) Bill now ensures that Scotland is leading the way in the UK on this issue.”
It is not always easy to define the difference between an apology and an admission of liability. If an apology is not expressed in the correct terms it could be an admission of liability, breaching the terms of the insured's policy, prejudicing the insurer's position and negating cover. However, following the ASA's introduction north of the border, this is less likely to be a trap which the insured will fall in to.
The ABI guidance on insurance aspects of inquiries and investigations, states that individuals involved need to exercise their independent professional judgement to ensure that the inquiry’s terms of reference, aims and objectives are achieved. Further, the guidance states:
"The ABI Insurers recognise that it can be appropriate for an organisation to choose to make a public or private expression of regret or apology. Indeed, apologies (since the enactment of the Compensation Act 2006) can be made without there being an assumption of liability. Policyholders may wish to review such statements to check that they do not inadvertently have the effect of admitting liability in relation to insured or insurable claims or allegations."
Section 2 of the Compensation Act 2006 is applicable only in England and Wales and confirms 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".
The importance of saying sorry is not to be underestimated. As you will know, in England, health and social care providers and healthcare professionals' duties of candour mean they must apologise to the patient when things go wrong and patients suffer harm. The NHSLA guidance on saying sorry confirms that patients, their families and carers should receive a meaningful apology – one that is a sincere expression of sorrow or regret for the harm that has occurred.
There is no doubt that an apology made to an injured or wronged party can reduce animosity between the parties and in some cases discourage a formal claim being made. It will be interesting to see if the ASA achieves its commendable aim of changing cultural and social attitudes towards apologising.
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