Sorry seems to be the hardest word: The case for apology legislation in New Zealand

Abstract

Apologies can play a powerful role in resolving disputes, yet defendants in civil actions are routinely advised not to apologise to plaintiffs for fear that the apology will be treated as an admission of liability. In recognition of this concern, and in an effort to promote resolution of civil disputes, many other common law countries have enacted legislation that creates a statutorily protected space for apologies. Such legislation typically stipulates that an apology shall not amount to an admission of liability. Some apology legislation goes further by, for example, making evidence of an apology inadmissible as evidence of liability at any trial and/or preventing insurers from relying on an apology to decline indemnity. This article argues for the enactment of similar legislation in New Zealand. It begins by outlining how apology legislation works and the reasons why other countries have enacted it, including the evidence to support the proposition that apologies facilitate dispute resolution. It then considers whether the same reasons exist in New Zealand. Finding that there is a prima facie case for the legislation in New Zealand, the article then considers arguments against apology legislation. It concludes by examining overseas experiences of apology legislation in practice and offering recommendations about the optimal form of apology legislation for New Zealand.