Apologising for Personal Injury in Law: Failing to Take Account of Lessons from Psychology in Blameworthiness and Propensity to Sue

Abstract

We know that the vast majority of people do not sue after personal injury. There is a significant literature on propensity to sue which relates it partly to the person's view of blame or attribution of responsibility. In many jurisdictions now there is legislation to protect apologies from becoming an admission of legal fault because of the perception that apologies are important to people's functioning. The psychological literature suggests that the psychological role of an apology is closely connected to the attribution of responsibility and that this plays out in a complex way to make apologies effective or ineffective within the psychological or legal context. This article explores how the legal regimes which seek to encourage apologies, (particularly in regimes of compensation for personal injury), have often failed to take account of the lessons that psychology has to offer in making apologies effective both psychologically and in reducing litigation.