Apologies in Mitigation of Damages for Negligence: Incentive or Weapon?

Apologies can offer solace and compensate for intangible and emotional harm in social and legal contexts. In some areas of law, an apology offered by a defendant will be factored into the assessment of damages awarded to vindicate the plaintiff’s rights and compensate for loss. This is the case in Australia, the jurisdiction primarily considered in this article, and in many other jurisdictions. There is a danger, however, of assuming that because apologies are compensatory in some sense, they can be used as a basis to reduce damages in tort law more generally. Even though general damages for non-pecuniary loss in fault-based torts are incommensurate to a monetary amount, they are still intended to compensate for actual loss. Empowering defendants to reduce their damages exposure by apologizing might incentivize meaningful apologies which are valued by plaintiffs. It might also create perverse incentives for plaintiffs and defendants alike, further unbalancing a system in which plaintiffs are already at risk of under-compensation. And it raises uncomfortable questions of evidence, reciprocity, agency and expertise which are yet to be fully explored. We argue for these reasons that it is not currently defensible to reduce an award of general damages for negligence, especially for personal injuries, on the basis of an apology by the defendant.