Law, Arts, culture & society | Australia

23 January 2018

It’s worth considering the value of an apology for wrongdoing when awarding compensation, Prue Vines writes.

Law reform is a sticky subject. It is difficult to do, and in my area of law, torts, there are large vested interests. Insurers, governments running compensation schemes, law societies and large corporations may not be interested in evidence which might suggest altering the status quo. This is not to suggest malice, but rather simple and reasonable self-interest.

I can add my own self-interest to the bundle. As an academic, it is in my interest to be able to write papers and do work which will show me as having ‘impact’, which is the ‘new black’ in academia.

But law reform is important. Private law is the law governing affairs between private citizens, which effectively uses the apparatus of the state to manage disputes. It is profoundly important, because if it is working well there is less litigation, and when litigation has to happen it settles disputes quickly, efficiently, and in a way the community sees as legitimate.

This is another way of saying that the law always operates within a context, and that we should take note of this context. In my chapter of a new book, New Directions for Law in Australia, I argue that up to now, tort law has inadequately taken notice of the psychological and emotional impact of wrongdoing. In private law, it can be easy to lose sight of the fact that the law is about people.

The general rule we use to determine compensation is to give money to put the victim back in the position they would have been in if the wrong hadn’t happened, insofar as money can do that.

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There are several problems with this. We know money cannot always right a wrong (though getting money is a great deal better than getting nothing). We know, too, that money is often insufficient, especially where people are badly injured. Many people who are compensated end up running out of their money, not because they frittered it away, but because our compensation law systematically undercompensates. The requirement of proof of fault in negligence actions means that many injured people don’t get compensated at all.

We also know that some people are more interested in being vindicated or getting an apology than in receiving compensation, particularly where they are not badly injured.

It is common for tort academics to point to no-fault schemes in New Zealand and Sweden and say “let’s take fault out of the picture”. Others object to this on the grounds that the payments tend to be lower, and that no-fault schemes face issues of bureaucracy.

People who are badly injured need proper compensation. But they also need something else – to be vindicated and, very often, to receive an apology.

Apologies have been much discussed in the last few years and private law has begun to take more notice of them. They are now sometimes given as remedies in discrimination cases, or they may be used as mitigation in defamation cases.

But ordering a person to apologise is rare. This is partly because of the view that an insincere apology is useless. However, there is a large literature on apologies which shows that, in the right circumstances, ordering an apology can in fact compensate an injured person for the wrong done to them, regardless of the sincerity of the apology. This is because the court ordering the apology is a comfort to the injured person, which remedies some of their emotional pain and humiliation.

Our law should reflect the society in which it operates. In Australian society, an apology is the normal thing to do when one has done wrong.

On that basis, ordering an apology as a compensatory mechanism should be added to the set of remedies which a court can use. Far from taking the question of fault out of the picture, an apology order squarely recognises the wrongfulness.

Even where no-fault compensation schemes are in operation it might be possible, when there is serious fault involved, to use the apology as compensation while leaving the normal financial compensation processes in place. The New Zealand Accident Compensation Commission does allow litigation where there is egregious fault, for example.

It may not seem like a major piece of law reform, but nevertheless I believe it would be useful. While apologies wouldn’t alter the fact that some people receive insufficient compensation, they would recognise and help to redress the emotional pain and humiliation that people often feel when someone has done them wrong. When it comes to civil wrongs, a civilising apology is well worth considering.

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