Consultation on a proposed Apologies (Scotland) Bill

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1 Consultation on a proposed Apologies (Scotland) Bill A response by the Association of Personal Injury Lawyers September 2012

2 Introduction The Association of Personal Injury Lawyers (APIL), a not-for-profit campaign group formed by pursuers lawyers with a view to representing the interests of personal injury victims, welcomes the opportunity to respond to this consultation. APIL currently has more than 4,400 members in the UK and abroad, with 166 members in Scotland. Purpose of the Apologies (Scotland) Bill The proposed purpose of the Apologies (Scotland) Bill is to set in law that an expression of apology does not amount to an admission of liability and is inadmissible as evidence, for the purpose of certain legal proceedings. APIL does not believe there is the need for an Apologies (Scotland) Bill, for the reasons set out in this response. APIL is also concerned about the detrimental effect such a Bill would have on civil justice in Scotland. The consultation paper itself raises worrying questions as to how the Bill would work in practice. The proposed definition of an apology for the purposes of the proposed Bill includes the point that an apology recognises direct or indirect responsibility for that bad outcome, yet the paper also says it is proposed that the Bill will not protect apologies in so far as they include admissions of legal fault, culpability or liability. This is a clear contradiction, and does not make clear how an apology could be prevented from being used as evidence under this Bill. This is likely to cause confusion, and could only act as an obstruction to justice. Why apologise? Receiving an apology after something has happened is an important part of obtaining justice. APIL fully recognises that people do not simply seek financial compensation following medical negligence, for example, but often look for other remedies, such as an apology or an assurance that what happened will not be repeated. There may be times, though, when an apology is not enough, and everybody has the fundamental right to seek justice through the courts.

3 Everyone should feel free to apologise as legal cases are taken on their merit by the courts and there is already judicial discretion as to whether the apology is an admission of liability. It is absurd to believe that the courts will make a ruling based on an apology, as there must always be substantial evidence for a personal injury case to succeed. Apologies in evidence There are occasions, however, where an apology is an important piece of evidence, as it shows something has gone wrong. In legal cases it is important that the courts have all the evidence available. It is then up to the court to decide if the apology is an admission of liability. The criminal case of Lauchlan (Dorothy Lee) v Hamilton and the civil case of George King v Quarriers illustrate how each case can be taken on its merits. In the criminal case of Lauchlan (Dorothy Lee) v Hamilton, the defendant said I m sorry once arrested and cautioned, after stealing two bottles of vodka from a shop. The High Court of Justiciary used that apology to corroborate evidence from the store manager who witnessed the offence, as in its context could infer that L had committed the offence as no alternative explanation was offered. The civil case of George King v Quarriers was one of a number of claims brought by an adult who was a resident in a home run by the defendants when he was a child. The pursuer had sought damages in respect of physical injuries sustained as a result of alleged assaults in the home, and the case was heard by Lady Smith. In submitting his case, the pursuer brought the court s attention to a petition lodged with the Scottish Parliament in 2002, calling on the Parliament to urge the then Scottish Executive to conduct an inquiry into past institutional child abuse. In response to an invitation from the Public Petitions Committee to comment on the petition, the defenders stated that if any individual suffered abuse in their Home they apologized.

4 After consideration, Lady Smith ruled that the apology averments were irrelevant, and they do not amount to an admission of liability. They do not amount to an admission that anything happened to this pursuer whilst he was a resident in the home. The consultation paper refers to the case of Lockhart Bryson v BT Rolatruc Limited (9 October, Court of Session Outer House) as an example of an apology being admitted as evidence. The pursuer had brought a claim following an injury at work, in which his left foot was run over by one of the rear wheels of a reach truck, causing certain soft tissue injuries in the foot. In his evidence, the pursuer said that the man who had driven the truck had apologised to him for running over his foot; however, he was unable to remember his exact words. Two other witnesses had also heard the driver apologising, with one of the witnesses thinking that the apology was in the nature of an expression of concern. The driver of the truck, who was giving evidence on behalf of the defendants, at first denied making an apology, before then admitting he thought it was possible that he might have apologised to the pursuer. Lord Osborne, presiding over the case, said that in the issue of liability the crucial factual question which has to be resolved is what happened immediately before the rear of the reach truck ran over the left foot of the pursuer, and so Lord Osborne would have to consider the evidence of what happened before the event, and not the subsequent apology. In his conclusion, Lord Osborne made no reference to the apology that had been made. While the apology was submitted in evidence, it appeared to play no part in the decision reached by Lord Osborne to find in favour of the pursuer.

5 Apologies and the NHS The consultation paper makes references to the NHS, and the fact that a patient may only want an apology from the NHS, and nothing more. It is a fallacy to think there is anything to prevent the NHS from making an apology if it believes there has been a mistake. The NHS in Scotland only has to fear litigation if there has been negligence under the long established Hunter v Hanley test. Hunter v Hanley established a test to show that the doctor must have adopted the usual and normal practice expected, and that a simple mistake does not automatically mean the doctor is liable. If the doctor has met the minimum acceptable practice, the NHS can apologise without any fear of litigation, as the doctor must have failed to meet the minimum standard for there to be negligence. It is only right, however, that if there has been negligence within the NHS, and the result is injury or death, all evidence, including an apology, should be made available to the court. Apology laws in other countries Before any comparisons can be made between this proposed Bill and apology laws in other jurisdictions, it is important to understand the other issues in those jurisdictions which have contributed to falling levels of personal injury claims. In the state of New South Wales in Australia, for example, which is referred to in the consultation paper as a place where a greater use of apologies could have resulted in lower claims, there are other factors which need to be considered. The real reason why there has been a fall in the number of personal injury claims in New South Wales is because in 2002 changes were introduced to deny compensation for pain and suffering for a large number of victims of needless injury. Unless an injury is currently worth more than $75,075, compensation cannot be claimed for pain and suffering, leaving many people disenfranchised and without the justice to which they used to be entitled.

6 It is surely this wholly unacceptable change which is taking so many cases out of the system and denying access to justice, and not the apology law. Conclusion The Apologies (Scotland) Bill risks turning the Scottish civil justice system into a second rate system, compared to the criminal justice system, and could potentially obstruct access to justice. In the criminal justice system where a defendant is facing an assault change and apologises for the offence, society would never tolerate that apology not being used as evidence of wrongdoing by the court.it would be absurd if the same apology could not be used as evidence where someone is injured through negligence. An injury should be worth no less if it is caused by a negligent party, rather than a criminal act, and all evidence should be considered by the courts to ensure access to justice is secured.

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