By Jessica Kerr and Robyn Carroll
In another judgment for the ages, Justice Lee of the Federal Court has recently excoriated Qantas for ‘performative remorse’ and being the ‘wrong kind of sorry’ after it wrongfully terminated 1,800 employees. Apologies are assuming increasing prominence — but continue to attract scepticism — across the spectrum of civil actions, and not just where penalties are on the table.
In a recent article for Laws, we considered the impact of an apology on the assessment of damages for non-pecuniary loss in negligence. We posited an unsuccessful defendant in a personal injury case, who points to their apology as a basis for ‘mitigating’ a damages award against them. Should Australian judges be open to this kind of argument? Our answer is a firm no, at least at this point. Incentivising apologies is a worthwhile goal, and one to which the legal system is rightly attuned. But weaponising apologies in the hands of defendants in this way is another matter — particularly in a system in which loss is already generally under-compensated.
An apology is first and foremost a social rather than legal act. It is also fundamentally voluntary, interpersonal, and subjective, and it’s worth is incapable of precise quantification. Apologies do however interact with the legal system in a range of ways. They may play a central role in processes of negotiation and settlement, which keep civil disputes out of court. As an expression of remorse (real or ‘performative’), they may influence the determination of criminal, disciplinary or statutory penalties. And they sometimes influence the assessment of civil damages with an explicitly vindicatory dimension, for example in defamation and intentional torts. This also makes sense for remedies with a punitive dimension (like exemplary damages) given the focus of such assessments on the defendant’s culpability. Apologising is, by definition, an exercise of agency by a defendant, and the term ‘mitigation’, when used in these contexts, is a natural counterpoint to ‘aggravation’. The natural implication — one not lost on Lee J — is that a bad, or absent,apology may be just as relevant as a good one.
In assessing compensatory damages in negligence, the focus of the inquiry is fundamentally different: it is on the plaintiff, not the defendant. When we talk about ‘mitigation’ in a negligence case, we are talking about the plaintiff’s response to a situation not of their making. If a plaintiff could have reduced their compensable loss and has unreasonably failed to do so (or if they have, in fact, succeeded in reducing that loss), then the amount required from the defendant by way of compensation is correspondingly less. Typically, this relates to pecuniary losses.
The only situation in which an apology might conceivably be relevant to ‘mitigation’ of non-pecuniary loss in this sense is one proposed by Jeff Berryman, in which a plaintiff unreasonably refuses an apology (impeding their own psychological or emotional recovery). But even if such situations could be reliably identified, that does not account for cases in which a plaintiff either accepts or reasonably refuses an apology. In such cases, the language of ‘mitigation’ is not helpful. What is really on the table is a proposal to reward a form of self-help by a defendant, independently of any choice made by the plaintiff.
Is this kind of self-help something that the legal system should incentivise, more than it already does? We already have ‘apology-protecting legislation’ in WA, which allows a defendant to offer a (partial) apology without the risk of it being used against them to establish liability. Incentive-based arguments for apologies ‘as mitigation’ claim to build on the premise of apology-protecting legislation: more defendants would apologise (and more plaintiffs would receive the benefits of those apologies, and fewer cases would end up before a judge) if they didn’t fear that it would ‘hurt their case’. But in a context where liability has been or is belatedly admitted, or declared by the Court, we see the balance of incentives as potentially quite different.
At the outset, it is important to clarify that an apology has no compensatory effect in the abstract. In other words, the proposal is not (and could not sensibly be) that there should be an automatic ‘discount’ to reflect the fact that an apology was made. The appeal of that approach to defendants’ lawyers might be obvious. But it is fundamentally irreconcilable not only with social science literature but with the compensation principle, because it shifts the focus from plaintiff to defendant. Rather, the suggestion is that judges could engage in a case-by-case analysis, to see whether an apology has in fact reduced the amount of non-pecuniary loss that a plaintiff has suffered. This is, on its face, consistent with the compensation principle. It has some resonance with the assessment of aggravated compensatory damages, which allows consideration of the manner in which the defendant committed the wrong in a particular case, in order to determine the compounding impact of that conduct on the plaintiff. It also resonates with the assessment of damages for defamation, for example, where courts are required by statute to look not only to the fact of an apology, but to its effectiveness in achieving compensatory and vindicatory objectives.
But even this more restrained proposal runs into immediate difficulties of both principle and practice. To start with a practical question, how would evidence of the positive impact of an apology in a personal injury case come before a court? This evidence would normally be in the control of the plaintiff, who has no clear incentive to tender it; even if they have, in fact, benefited from the apology, they are being asked to incur additional expense (and stress) to provide evidence that will, by definition, be used against them.
The resource implications of proving the loss-reducing effect of an apology extend beyond the plaintiff. If an apology is made after an admission or finding of liability, there would need to be a separate hearing to enable such evidence to be tendered and assessed. If an apology is made earlier but ‘shielded’ by apology-protecting legislation, there would need to be a bifurcated hearing to enable its admission for damages purposes. It is questionable whether any reduction in the award in such circumstances would outweigh the additional cost for the defendant, let alone for the court system.
There is also the question raised by Lee J’s comment about the ‘wrong kind of sorry’: if a good apology can reduce the amount of damages needed to compensate a plaintiff, can a bad or absent apology increase that amount? In penal or disciplinary contexts, apologies may be just as relevant to aggravation as to mitigation. The observation that the pain and suffering experienced by a victim of negligently inflicted personal injury might be aggravated by the absence of a meaningful apology is hardly radical, and Australian case law does not preclude aggravated damages for negligence. Yet there does not seem to be support in existing scholarship or jurisprudence for allowing evidence about an apology (or its absence) to support an increased award for non-pecuniary loss in negligence. This lack of reciprocity exemplifies the difficulty of relying by analogy on proceedings in which the focus is naturally on a defendant’s conduct, or where the wrongdoing was intentional.
The prospect of reducing damages in response to an apology also raises questions about the agency of plaintiffs. We know from the literature that what constitutes a valuable apology is a highly unique and subjective experience. One of the benefits of apology-protecting legislation is that it neither forces a victim to accept an apology nor precludes them from pursuing full compensation. Arguably, rewarding defendants for apologising would risk doing both.
As Nicola Brutti has noted in a similar context, a court which penalises a wrongdoer like Qantas for apologising badly, or not at all, is putting a price on that specific choice, rather than on the original wrong. It seems unlikely that this kind of moral judgement about the defendant’s conduct would be seen as defensible in a purely compensatory action for negligence. But that is exactly the difficulty with the case for apologies as ‘mitigating’ damages: it seeks to reward a defendant for a choice made independently of their initial negligence.
A further practical question concerns judicial capacity to judge an apology. Measuring the unmeasurable is hardly an unfamiliar challenge: on one view, as Daniel Shuman puts it, the entire field of damages for intangible loss lacks any cogent theoretical or empirical foundation. But Shuman was making the case for apologies as damages-reducing in a context where it would be juries, not judges, making the call. Judges in Australia are bound above all by legal, not social, norms, and their approach may be far removed from the reasonable perceptions of both maker and recipient of a disputed apology. Judges are also, for the most part, not social scientists, and may have little exposure to the literature on apologies. Nor, in the current judicial system, can they be required to undergo training in this area. So unless the science is explained to a judge it is not safe to assume that it will be reflected in a damages judgment, or that the approach to this question (at least in the early days) will be consistent across different judicial officers.
We return then to the question of incentives. Encouraging defendants to apologise by offering the prospect of a reduction in damages might be seen as supporting the autonomy of plaintiffs, to the extent that it prioritises and responds to any desire on their part for an apology and their capacity to heal. It might also be seen as an attractive alternative to the prospect of an ordered apology (akin to a mandatory injunction), which has now been floated in several Australian judgments but remains controversial among scholars and judges.
Taking a more cynical viewpoint, though, the potential for instrumental apologies in this context is clear. While an insincere apology may still have real value to some injured parties, for example because it has some humbling or shaming effect on the defendant, the proposals we are responding to are all premised on sincerity. There is, however, little evidence to support this premise in relation to defendants who would not have apologised in the absence of the incentive: especially when, as in our scenario, liability was originally contested.
It is crucial to bear in mind that most personal injury cases are initiated by individual plaintiffs, who are first-time litigants, and defended by insurance companies and other corporate defendants, who are repeat litigants. An apology which is effectively dictated by a corporate insurer, at a point when it becomes clear that a plaintiff is likely to succeed (or has already succeeded) in establishing liability, is far removed indeed from an apology as a spontaneous interpersonal response. There must be room for doubt that an apology received from an insurer who defended against liability can safely be assumed to have equivalent, if any, compensatory effect.
Finally, it is important to acknowledge the potentially perverse incentive that arises for plaintiffs to reject or minimise an apology which they would otherwise have wanted and valued. The key contextual consideration in personal injury cases is that, as scholars like Prue Vines have highlighted, plaintiffs are already likely to be under-compensated for their injuries. A plaintiff who is already concerned about the adequacy of a damages award to meet their current and future needs has no incentive to accept that an apology has met or diminished those needs, when that might result in an even more inadequate award. On the contrary: the incentive is, if anything, to downplay the impact of an apology, or even reject that apology as insincere or incomplete. In a situation in which the offered apology is sincere and meaningful, the rejection or minimisation of that apology also has potential impacts for the defendant (both pecuniary and non-pecuniary), as well as for any ongoing relationship between the parties.
In conclusion, we acknowledge the potential compensatory (and other) benefits of apologies made in the aftermath of negligently inflicted personal injury. We also accept the general argument that the law should incentivise apologies in the interests of early and effective resolution of disputes, and that an apology may reduce the need for damages which serve to vindicate the plaintiff’s rights and punish the defendant. There is a risk, however, that incentive-based developments along these lines in the assessment of compensatory damages for personal injuries would effectively weaponise an apology in a defendant’s hands to the detriment of the plaintiff and the compensation principle. For now, we see this risk as too great to justify opening the door to any proposal for apologies as a ‘mitigating’ factor in negligence.
