Does issuing an apology constitute an acceptance of liability in Australia? And what is the position in England & Wales and in Scotland? The general vein of advice given by litigiously conscious individuals when dealing with survivors of historic abuse it to avoid issuing any apologies that may, even slightly, be construed as accepting an element of responsibility for the events. This is predicated on the belief that a full apology would attract an element of legal liability even though Australian case law gives little to support for this position.

By virtue of section 69(1) Part 10 of the Civil Liability Act 2002 NSW (“CLA”) a letter of apology cannot be constituted as an admission of fault or liability, is not relevant to the determination of the fault or liability and is not admissible in civil proceedings. These provisions are echoed in the legislation of South Australia and Queensland. As such, the issuance of an apology by a party should not be considered relevant when determining the fault or liability of those issuing the apology.

Under section 68 CLA an apology is defined as an expression of sympathy or regret that may include an admission of fault. This may include both verbal and non-verbal expressions of sympathy, treatment or redress. As such, they include more than the formal written letters that are a common feature of abuse proceedings.

The position of apologies was considered by the 2015 Royal Commission's Redress and Civil Litigation Report (the “Report”) which held that a simple apology was not sufficient to constitute effective redress for those affected by the abuse and many require more substantial forms of redress to believe that there has been justice. In fact, the inadmissibility of apologies to the court as an admission of liability or even as a factor for consideration when determining fault and the tentative nature of many letters, due to the fear of liability, mean many survivors consider them to be meaningless.

Nonetheless, the failure of an apology to determine the liability of a party does not make the issuance of these letters immaterial to the progress of the case. It is often found that a letter of apology can be very useful in opening the doors for negotiations and discussions and may be used as an important part of the settlement process. Research suggests that parties are 20% more likely to engage with settlement discussions where a genuine letter of apology is issued (see Wheeler, Chris, "Open Disclosure and Apology - Time for a Unified Approach Across Australia" [2013] Australian Institute of Administrative Law Forum 18, 21).

Guidance from the Report suggests that to be genuine and effective, the apology should:

• Recognise the wrongful act and the resultant harm;
• Contain an acknowledgement of responsibility or fault;
• Ensure that there is an expression of regret; and
• Outline the steps that will be taken to ensure that the events do not occur again.

As such, institutions across Australia should be seeking to provide a genuine apology, if desired by the survivor during the course of the negotiations and can do so without the fear of prejudicing their position on liability. The party issuing the apology can use it to open dialogue between the parties and move towards settlement but should be mindful of ensuring that their letter has particular consideration for the specific circumstances and the suffering that has been endured rather than just a generic expression of regret.

Much of this position is echoed in England & Wales by the provisions of the Compensation Act 2006. That was also considered by the Independent Inquiry into Child Sexual Abuse (IICSA) and a recommendation made for further clarification to be clear that the provision applied when liability arose as a result of vicarious liability as opposed to just negligence or breach of statutory duty. And argument which some had made as a reason why an apology could not be given without it amounting to an admission of liability. Despite the recommendation for change being made in 2091 the Government position since has been to say it would not make any changes until IICSA have reported recommendations about limitation and then the Government indicated in 2021 it would consult further. Such consultation remains outstanding, the final IICSA report published 20th October may comment further.

In Scotland the Apologies (Scotland) Act 2016 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". Again the Act aims to ensure apologies can be made without unnecessary concern about the same amounting to an admission of liability.