In workers’ compensation, as in love, sorry seems to be the hardest word.

Employers and insurers are frequently advised to avoid apologising for fear of admitting liability.

However, this aversion to apologies may be doing more harm than good, according to a paper by NSW Deputy Ombudsman Chris Wheeler.

Apologies are likely to result in quicker resolution of claims as well as better outcomes for employers and workers.

Legal status of apologies

Employers and insurance agents are frequently advised by their lawyers that an apology amounts to a confession of guilt. Yet the legal status of apologies is uncertain under Australian law.

In Queensland, New South Wales and the ACT, legislation provides that full apologies, including admitting responsibility for damage, do not amount to admissions of guilt. However, there are notable exceptions, including for motor vehicle accidents and violent crimes.

In all other states, partial apologies attract some protection. A partial apology means expressing sympathy or regret without taking responsibility.

Thus “I’m so sorry I caused this accident” might amount to an admission of guilt in these states whereas “I’m so sorry this happened,” might not.

Common law is also unclear about the significance of apologies.

In one High Court case, a company issued a statement apologising and stating “it failed in its duty of care” to its customers. Judges dismissed the apology, taking into account that people often apologise in hindsight for issues they could not actually have foreseen.

However, the Court also held that an apology might amount to an admission of guilt in other circumstances.

Due to this uncertainty, parties to a legal claim may wish to consult their lawyers before making statements about the incident. Yet even in circumstances where apologies are likely to be legally protected, lawyers still frequently advise clients against apologising.

Why apologies are important

The reluctance to apologise may contribute to long-term claims within the worker’s compensation system.

A study by Jennifer Robbennolt from the University of Illinois found that personal injury claimants agreed to settle 52 percent of the time when no apology was offered. However, when an expression of fault and regret was made, claimants agreed to settle 73 percent of the time.

Meanwhile, a study at the University of Michigan examined the impact of a program encouraging doctors to apologise for mistakes. The study found that malpractice claims fell by 36 percent after the program was implemented. The median time it took to resolve claims dropped by several months and the mean costs for liability fell by 60 percent.

Wheeler believes that, for many injured people, it is the lack of apology that compels them to seek greater compensation rather than the injury itself.

An effect known as “double deviation” may mean the initial injury does not cause an intensely negative reaction unless a second intervening event occurs, such as refusing to apologise.

Injured workers may also be reluctant to accept a settlement if they feel the “truth” has not been exposed. The worker may refuse to settle until the company publicly admits its wrongdoing.

As former Premier Bob Carr said when introducing protections for apologies in New South Wales, “injured people often simply want an explanation and an apology for what happened to them. If these are not available, a conflict can ensue. This is, therefore, an important change that is likely to see far fewer cases ending up in court.”

How to apologise

Wheeler suggests that good apologies address the needs of the harmed person. Rather than a throwaway statement, a good apology contains a package of action, including:

• an admission of responsibility
• an explanation of the causes
• a commitment towards putting things right and
• an expression of sorrow.

Generally, apologies are like first impressions – you only get one chance to make a good one.

Indeed, a botched apology may make tensions between the parties worse. Things to avoid include:

• Misidentifying the issue of concern to the injured person
• Taking responsibility for something that was not your fault
• Giving a generalised apology that does not identify the relevant problem
• Seeking to avoid responsibility or shift blame
• Offering a conditional apology that questions whether harm was done, such as “If I offended you, I apologise"
• Sounding insincere or dismissive
• Continually apologising for the same issue without remedying the situation

The word “sorry” may be difficult to say but it is often exactly what people with an injury need to hear.