In brief - Under Part 10 of the Civil Liability Act, institutions in New South Wales involved in civil and redress claims are afforded protection and can apologise to abuse survivors without the apology being considered an admission of liability in the context of civil proceedings
For survivors of institutional abuse, a direct and genuine apology from the institution responsible is an important part of the redress and healing process. Survivors have reported that an institution acknowledging what happened and taking responsibility for the abuse, helps them to find some sense of closure.
Simply put, an apology is an expression of sympathy and regret, - a straightforward "I'm sorry".
Royal Commission into Institutional Responses to Child Sexual Abuse stresses the importance of genuine apologies to survivors
However, the 2015 Royal Commission's Redress and Civil Litigation Report demonstrated that a simple apology was not enough to constitute effective redress for survivors of abuse, and in some instances, survivors considered them meaningless (see page 143).
The Commission concluded that an apology should genuinely engage with the individual circumstances of the survivor, and, most importantly, acknowledge responsibility for the abuse and outline the steps the institution has taken or will take to protect against further abuse.
Apologies are an essential element of the National Redress Scheme (called a Direct Personal Response) and are an increasingly common feature of civil claims. As outlined in the Commonwealth Ombudsman's How to deliver an effective apology factsheet, common features of a full and genuine apology include:
1. Recognition of the wrongful act and the harm it has caused;
2. An acknowledgement of responsibility or fault;
3. An expression of regret; and
4. The steps taken to prevent the wrongful act from reoccurring.
Apologies and civil claims
In the context of civil claims, many institutions may be uneasy about providing an apology for abuse that includes a clear acknowledgement of responsibility or fault, in the event that the apology will be considered an admission of legal liability.
Under Part 10 of the Civil Liability Act 2002 NSW (CLA), section 69 provides that an apology:
(1)(a) does not constitute an admission of fault or liability in a matter;
(1)(b) is not relevant to the determination of fault or liability in a matter; and
(2) evidence of the apology is not admissible in civil proceedings as evidence of fault or liability.
In NSW, under section 68 of the CLA an apology is defined as an expression of sympathy or regret and may include an admission of fault. This definition may include non-verbal expressions of sympathy by an institution, such as offering support services and counselling to survivors (see p 685 of Villa's Annotated Civil Liability Act 2002 (New South Wales)).
Institutions in NSW may therefore provide a full and genuine apology to survivors of abuse, which includes an acknowledgement of responsibility, without that apology being considered an admission of liability in the context of civil proceedings.
Protections afforded to apologies in other Australian jurisdictions
The protections afforded by Part 10 of the CLA are mirrored in the ACT (Civil Law (Wrongs) Act 2002 (ACT) Part 2.3), South Australia (Civil Liability Act 1936 (SA) Part 9, Div 12), and Queensland (Civil Liability Act 2003 (QLD) Part 1A). With some minor differences, in all of these jurisdictions, a full apology including an acknowledgement of fault will not be considered an admission of liability.
On the other hand, in Victoria, Tasmania, Western Australia and the Northern Territory, civil liability legislation only affords protection to simple apologies - an expression of sympathy or regret. (See Personal Injuries (Liabilities and Damages) Act 2003 (NT) Part 2, Div 2; Wrongs Act 1958 (Vic) Part 2C; Civil Liability Act 2002 (Tas) Part 4; Civil Liability Act 2002 (WA) Part 1E ). Any acknowledgement of fault or responsibility included with the apology may potentially be used as an admission in civil proceedings.
Consequently, institutions involved in civil claims and Redress matters in Victoria, Tasmania, Western Australia and the Northern Territory will be limited in how they are able to engage with survivors.
Effect of genuine apologies or failure to apologise on damages
In addition to the intangible benefits that a full and genuine apology may have to a survivor of abuse, an effective apology may be an important part of the settlement process for institutions. Research suggests that an effective and personalised apology may facilitate an early and reasonable settlement, and result in a survivor being more satisfied with the outcome (see Wheeler, Chris, "Open Disclosure and Apology - Time for a Unified Approach Across Australia"  Australian Institute of Administrative Law Forum 18, 21).
In the event that a matter cannot be settled, and proceeds to trial, a full and genuine apology may also impact on an assessment of aggravated or exemplary damages. NSW courts have repeatedly considered an apology, or importantly, a failure to apologise, as a relevant matter in calculating special damages in tort cases.
What should institutions in NSW involved in civil and Redress claims do?
Institutions in NSW should be looking to provide a full and genuine apology, if requested by the survivor. This apology should be more than a simple "sorry"; it should be personalised to the particular survivor's experience, take responsibility in a meaningful way, and provide some assurance of steps taken in response.
Each apology will be different; it can be written or delivered orally, given in the context of settlement negotiations or at any other stage in a claim, with confidence that it will not be considered an admission of fault or liability.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2022.