By Bodhisattwa Majumder
Apology legislation provides an opportunity for a guilty person to provide information without the fear of liability, thus strengthening the victim’s right to have accurate information.[i] The main purpose behind having apology legislation is to enable the accused to feel culpable for their actions, and offering of sympathy without the fear of the consequences.[ii] The apology here does not recognize any duty owed or breached, and Courts do reinforce their roles as e-finder of fact to determine existing liability or fault.[iii] This article analyses the legal rationale behind the creation of Apology Legislations by looking at the historical progression of similar reforms in the United States of America and Australia. It also considers the Canadian position regarding apologies and comments on the potential effect Apology Legislation will have on the courts.[iv] The paper also delves into the assumptions made underlying the creation of Apology Legislation, and whether there is a significant economic advantage to implementing such reforms in favor of making apologies inadmissible. The Indian Legal System currently lacks a proper statutory framework on Apology Legislation and the judicial precedents have only considered apologies as a form of evidence or admission of guilt.
The author moves with the hypothesis that the prospective areas where Apology legislations are required to make apologies, immune to be treated as an admission of guilt in Indian Legal System are Insurance law, Medical Negligence, Defamation, Criminal Contempt, and Motor Vehicles accidents among others, and the reason for the same has been discussed herein.
Historical Framework of Apology Legislations
Apology legislation was first enacted by the State legislature of Massachusetts in 1986 (“Safe Harbour Provisions”)[v], which provided the option of apologizing to the defendants in tortious claims. However, the law was silent on the evidentiary value of the apology and whether it can be a basis of a conviction. Similar legislation was enacted by other states which followed the “Texas Model”[vi] which was identical except the inclusion of ‘partial’ apology. The Partial[vii] apology model included only certain kinds of apologies to be immune which are sympathetic in nature and have not admitted culpability or negligence. Thus, any statement which admitted the culpability or negligence was beyond the protection of law hence could be used as an admission.
Later fully protected apology legislation was enacted by the other American states, one of them being Connecticut Bill[viii]. However, unlike commonwealth jurisdictions, there was no universal acceptance of the full apology legislations. In common law countries such as Australia, the need for full apology legislation was realized due to large numbers of cases of medical malpractices which required reduction of evidentiary burden on the victims. In actions on medical negligence, the apology was made a part of inadmissible evidence even if there is open disclosure.[ix] The governments of New South Wales and the Australian Capital Territory have chosen to protect fault‐based apologies the majority of Australia has followed the American models, similar to those of Texas, California, and Florida.[x] The New South Wales model provided the common law world with the broadest and most robust legal reform concerning apologies. The NSW model would become the foundation for Canadian legal reform.[xi]
Apology legislation: Why do we need it?
In common law jurisdictions[xii], the tendency to make apologies inadmissible has been extended due to the huge pending litigation, the economic considerations of a delayed situation and the absence of timely information due to the fear of accruing liability by the accused. The substantial increase in pending litigation piles up the litigation costs and damages for both of the parties as the party which is at fault denies taking statements of responsibility, for the fear of being used as an admission of guilt. The fear of admissions arises from the consequences, ranging from penal sanctions to breach in compromise clause making the insurance void. Such kind of ‘admission’ benefits no party as even though the defendant will be held liable there would be no recourse against the insurers. The assumption[xiii] with which the apology legislation is drafted mainly lies that the persons provided with timely, authentic apologies combined with disclosure of the adverse event question, will let go of litigation, or be partially placed and accept lower settlement values. A survey[xiv] conducted in Britain had proved, that among the sample space 37% of British families would have not chosen litigation if they have been offered a full apology with disclosure. Hence, accepting a timely apology and disclosure, thereby letting go of legal recourse holds a significant economic benefit to both the parties.
The Apology legislations have been held effective in cases of Insurance Claims, Motor Vehicle Accident Claims, and Defamation Cases. Unlike the present Indian legal framework in insurance or motor vehicle accident cases, where admission voids the insurance coverage, a transformation is required to a framework where the coverage is only set aside on the merits of the case not solely on the apology. The insurer must prove that the insured breached the general duty of co‐operation, apology of the insured ‘prejudiced’ the insurer and that the insured was acting in ‘bad faith’ when offering the apology.[xv] In Defamation cases, the apology is either given voluntarily or ordered by courts after proceedings, and the court accepts the apology along with a prayer of the parties if the judgment is ruled in their favor. A legal leeway can be given to the accused in these cases to apologize before the initiation of the litigation process itself so that the matter can be settled outside the court without the fear of further sanctions or litigation.
India’s Legal position on Apology Legislation
The Indian stand on apology legislation stands that there is no such statutory framework that can facilitate an apology made without the fear of consequences. However, it was held by the apex court in Awadh Kishore Das v. Ram Gopal and Ors.[xvi] where an apology was accepted as admission and effective proof of facts which raise estoppel and shift the burden. The latest judgment was passed by the Delhi High Court in Union of India v. K. Asaiah[xvii] had agreed with Awadh Kishore Das[xviii] judgment.
According to Section 31 of the Indian Evidence Act, 1872 the evidentiary admissions are not conclusive proof of the facts admitted and may be explained or shown to be wrong. But they raise estoppel and shift the burden of proof placing it on the person making the admission or his representative-in-interest. Unless shown or explained to be wrong, they are efficacious proof of the facts admitted.[xix] The Hon’ble Court in Debabrata Bandopadhyay and Ors vs. The State of West Bengal[xx] while discussing whether the respondent’s apology for the inconvenience caused to the complainant for the said service deficiency amounts to admission, it held that mere apology does not amount to an admission of deficiency on the part of the party.[xxi]
Conclusion
At present, there is no apology legislation or framework to assist the expression of apology in India and not be treated as an admission of guilt. As per judicial pronouncements, apologies are acceptable as evidentiary admissions which help in establishing the guilt of the accused and therefore there is no statutory framework that can facilitate an apology made without the fear of consequences. Fortunately, the courts have ruled that an apology cannot be the sole basis of getting a conviction; still, the mere fact that apologizing might harm their case, this option will not be used by any interested party.
A certain framework of apology legislation must be introduced in the realm of medical negligence, motor vehicle accidents, defamation, insurance, contempt, to improve the relationship between the parties and provide legal protection or immunity to timely apologies in good faith.
[i] Barr, Graham Andrew Burch, “Disingenuous or Novel? An Examination of Apology Legislation in Canada”, (Graduate Department of Law, University of Toronto, 2009).
[ii]Brown, Raymond E., and Jeremy S. Williams, “The Law of Defamation in Canada”, (2nded. Scarborough, Carswell, 1994).
[iii] Catherine Morris, “Legal Consequences of Apologies in Canada,” from the workshop on “Apologies, Non‐Apologies, and Conflict Resolution,” (University of Victoria, October 3, 2003)
[iv] Alter, Susan. “Apologising for Serious Wrongdoing: Social, Psychological and Legal Considerations.” (Ottawa: Law Commission of Canada, 1999).
[v] Section 23D, Chapter 233, Massachusetts General Laws.
[vi] §18.061 of the Texas Civil Practice and Remedies Code deals with communications of sympathy in terms as follows:
(a) A court in a civil action may not admit a communication that: (1) expresses sympathy or a general sense of benevolence relating to the pain, suffering, or death of an individual involved in an accident; (2) is made to the individual or a person related to the individual within the second degree by consanguinity or affinity, as determined under Subchapter B, Chapter 573, Government Code; and (3) is offered to prove liability of the communicator in relation to the individual.
[vii] Texas CivPrac and Rem Code Ann §18.061 (1999).
[viii] Connecticut General Statute Ch 899 tit 52,§184d and Hawaii Rev Stat §626‐1 (2007).
[ix] Prue Vines, “Apologising to Avoid Liability: Cynical Civility or Practical Morality?”, at pp. 485 (Sydney Law Review, 2005).
[x] California (2000), California Evidence Code §1160; Texas Civil Practice and Remedies Code §18.061 (1999) and Florida Statutes §90.4026 (2001)
[xi] Id.
[xii] Id.
[xiii] Ashley A. Davenport, “Forgive and Forget: Recognition of Error and Use of Apology as Preemptive Steps to ADR or Litigation in Medical Malpractice Cases”, at pp. 82. (Pepp. Disp. Resol. L.J, 2006)
[xiv] Charles Vincent, Magi Young, and Angela Philips, “Why Do People Sue Doctors? A Study of Patients and Relatives Taking Legal Action”, pp. 1609‐1613 (The Lancet, 1994)
[xv] Supra note 25 at pp. 1026
[xvi]Awadh Kishore Das v. Ram Gopal and Ors. (1979) 4 SCC 790
[xvii]Union Of India v. K. Asaiah W.P.(C) 4682/2014
[xviii] (1979) 4 SCC 790
[xix]Divisional Manager, United India Insurance Co. Ltd. And Anr. v. Samir ChandraChaudhary (2005) 5 SCC 784
[xx] Debabrata Bandhopadhyay v. State of West Bengal 1969 AIR 189
[xxi] Id.
[The author is a penultimate year law student at Maharashtra National Law University.]
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