Does an apology in Scotland constitute and admission of guilt in a dental claim?
It may have passed you by, but the Apologies (Scotland) Act 2016 came into full force on 19th June 2017. The Act gives protection to Scottish dentists who apologise to patients for negligent dental treatment. It is important to note that the Act only provides protection to an apology made after the Act came into force on 24th February 2016.
An apology is defined in s3 of the Act and provides that an apology is a statement (which could be written or oral) made either by the person who is apologising (whether a natural person, or a legal person such as a company), or by someone else on their behalf (e.g. a spokesperson or agent).
The core element is an indication that the person is sorry about, or regrets, an act, omission or outcome.
Where the statement includes an undertaking to look at the circumstances with a view to preventing a recurrence, that qualifies as part of the apology itself. The definition of apology for the purpose of the Act does not include statements of fact or admissions of fault. In any statement that includes both an apology and a statement of fact and/or admission of fault, only the apology is inadmissible as evidence of liability.
s1 of the Apologies (Scotland) Act 2016 says this:
"Effect of Apology in legal proceedings:
In any legal proceedings to which this Act applies, an apology made (outside the proceedings) in connection with any matter—
(a)is not admissible as evidence of anything relevant to the determination of liability in connection with that matter, and
(b)cannot be used in any other way to the prejudice of the person by or on behalf of whom the apology was made"
When speaking to new clients they often tell me that the dentist in question accused of negligence has apologised to them and that this somehow means that the dentist in question is guilty of the most atrocious negligence. Not quite so.
In the eyes of the law an apology does not equate to an admission of liability. In England & Wales -Section 2 of the Compensation Act 2006 provides that
“an apology, offer of treatment or other redress shall not of itself amount to admission of negligence or breach of statutory duty.”
But what exactly is an apology as this is not defined in that act.
“The apology” is Plato’s version of the speech given by Socrates as he defended himself in 399 BC against the charges of “corrupting the young and by not believing in the gods in who the city believes but in other daimonia that are novel” the word apology here has its earlier meaning of speaking in defence of a cause or of one’s belief or actions.
The Cambridge dictionary definition of an apology is
“an act of saying that you are sorry for something wrong you have done”
That an apology does not constitute an admission is one of the first things learnt by law students with cases such as Muir v Glasgow Corporation [1943] UKHL 2.
In Muir, A group of children were having a day out with their Sunday school. They were meant to be having a picnic, but the rain had ruined it. The leader of the trip asked the manager of a tearoom, run by Glasgow Corporation, if she would allow the children to have their picnic on their premises. She agreed and the group entered. In the tearoom there was a tuck shop, the window to which was located midway along a corridor. The children had all started to line up along the corridor to buy sweets at the tuck shop. At this time a large tea urn was being carried along the corridor by two adults, to the main room of the tearoom. For a reason which was not explained, the hold of one of the bearers slipped so that tea was spilt and scalded several children (Muir being one of them). The parents of the girl sued Glasgow Corporation, claiming that they owed the child a duty of care and that they had breached this.
The court held that the manageress in charge owed a duty of care, generally, to everyone in the tearoom. However, she did not owe a duty of care to the Sunday school to take additional precautions to prevent their being injured as a result of her allowing them to enter. So long as the tearoom was run in the same manner as it was day to day, and to the same safety standards, she was not required to take extra steps to prevent the incident which occurred. It was not reasonably foreseeable that allowing the children to come into the premises would result in one of them being scalded. As such, the incident was put down as an accident which could not have been prevented.
There is therefore clear guidance to suggest that the court will not find any liability in some cases where defendants have apologised or expressed a retrospective wish to have acted differently.
