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

Abstract

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.

1. Introduction

It is becoming more common for judges to engage explicitly with apologies in the course of adjudicating civil disputes. Apologies are acknowledged, interpreted, protected, and incentivized in an increasing range of legal contexts, including in tort claims. Some of those contexts have attracted significant academic and regulatory attention. Concern about eliding apologies and admissions of liability, for example, has prompted the introduction of apology-protecting legislation in all Australian and many other common law jurisdictions. Similarly, recognition of the vindicatory dimension of apologies has seen them recognized as a remedial factor for specific wrongs, for instance defamation and unlawful discrimination. There continues to be debate about whether an apology can or should be compelled by a court, in these or any other contexts, and about what value should be placed on an apology of that kind. All such debate takes place in the long shadow of the phenomenon of under-compensation of personal injury plaintiffs—the underlying concern of this paper—and in a context in which most defendants are legal, non-natural persons.

This paper invites further reflection about a potential role for apologies in the assessment of damages for negligently inflicted personal injuries (the most common basis for seeking compensation in court) in Australian law and beyond. It takes as read the potential benefits of apologies made in the aftermath of these injuries. It also accepts the general argument that the law should incentivize apologies, or at least remove disincentives to apologizing, in the interests of early and effective resolution of disputes. There is, however, a risk that incentive-based arguments could be developed—or distorted—to further erode the redress available to plaintiffs. In view of that risk, we make the case for resisting a development which might initially seem attractive, namely a reduction in damages for personal injuries on the basis that a defendant’s apology has “mitigated” the plaintiff’s loss.

As will be seen, the language of mitigation has gained some traction with scholars internationally and may have instinctive appeal to lawyers and judges. Offering incentives to mitigate loss offers a positive (if very partial) response to growing concern about under-compensation, and carries implications of proactive and responsible litigant behavior. Describing apologies as having a mitigating effect is, however, also apt to mislead in some circumstances. At a time when apologies are cementing their place in mainstream legal thought, it is important not to assume that every apology-promoting initiative is sound in either principle or practice. This paper suggests that treating apologies as a basis for reducing damages in the personal injury context is likely to prove difficult to defend on either basis.

The paper begins with a brief introduction to the compensatory function of apologies and the ways this function has been recognized by the Australian legal system. It then clarifies the situation under discussion: the assessment of damages for non-pecuniary loss in a personal injury claim in negligence, following an admission or finding of liability. The paper proceeds to explore whether an apology can, or should, reduce (“mitigate”) the amount that would otherwise be awarded as compensation for non-pecuniary loss, particularly under the head of “pain and suffering”. It considers arguments that have been made to this effect internationally, and highlights a range of uncertainties, obstacles, and counter-arguments that are yet to be satisfactorily addressed.

2. Background and Scope

2.1. Apologies as Compensation

Apologies do not have a single, clearly defined role in the law. As Nicola Brutti puts it, they ‘may be seen as something that comes from outside the legal system but may affect outcomes and alter what we would naturally expect from the legal system’ (Brutti 2021, p. 158). Apologies may serve different functions, bear different meanings and carry different value within a legal system, just as they do within any given society. It is known from a social science perspective that apologies can offer solace and reduce intangible and emotional harm (Vines 2024, p. 222). They can, for example, reduce mental distress that would otherwise be experienced by a victim of a negligently inflicted personal injury. It is in this broad sense that apologies can be described as compensatory (Carroll 2020, p. 184).

Apologies are not, however, generally available as a court-ordered form of compensation. An apology is traditionally understood as a voluntary, uncoerced act. Compensatory awards in legal proceedings are also, conventionally, money awards. Apologies do not compensate in the same way as money, except to the extent that there is overlap in the symbolic or expressive effect of an apology and an award of damages. The meaning and value attributed to an apology by an injured party is also inherently subjective (Allan and Carroll 2016, p. 10). Importantly for present purposes, there is no settled general mechanism for quantifying the compensatory effect of an apology in monetary terms. This stands in contrast, for example, to the provision of physical or psychological care.

2.2. Apologies and Damages

Apologies may, of course, be made or withheld in the context of a civil proceeding without having any direct impact on the damages available to a successful plaintiff. They are social acts which serve purposes independent of the resolution of legal claims. Within the legal system, however, an apology may be significant to an award of damages in at least three broad and potentially overlapping scenarios: (a) where a judge has power, or is required, under a specific statutory regime to have regard to an apology when assessing the amount of loss or damage for which compensation is to be paid to an applicant;1 (b) in awarding aggravated damages (which while still compensatory, reflect the manner or circumstances in which the loss was inflicted), and more generally in awarding damages “at large” for torts which are actionable per se;2 and (c) in awarding damages the purpose of which is explicitly non-compensatory (for example, vindication and punishment).3

None of these categories applies directly to the assessment of compensatory (non-aggravated) damages for personal injuries and we will not therefore consider them further here. We return to discuss the second and third categories and their significance to the arguments made in this paper in Section 3.

2.3. Compensating Negligently Inflicted Personal Injury

It is useful at this point to briefly outline the standard forms of recovery for negligently inflicted personal injury in Australia. Unlike in no-fault compensation jurisdictions like New Zealand, Australia and most other common law jurisdictions have retained a generally fault-based approach. However, and this is a key point of context for this paper, the conduct of a defendant who has been found to be at fault does not affect the quantum recoverable by way of compensation. The current law in Australia reflects a complex and somewhat unsatisfactory interaction between statutory codes and pre-existing common law principles. In essence, compensatory damages aim to place a victim of negligence in the position that they would have been in if the negligence had not occurred (so far as that can be done with money). All reasonably foreseeable pecuniary and non-pecuniary loss is recoverable, as long as it does not reflect a failure of the plaintiff to take reasonable care of their own interests.4 However, the civil liability reforms in the early 2000s have resulted in significant practical restrictions on recoverability. Not only are damages awarded in a single, one-off lump sum (a practice common to all civil proceedings), but there are statutory caps on recovery at both the bottom and top of the range, particularly in cases involving personal injury.

Recoverable loss is generally claimed under three broad heads: pecuniary loss resulting from special needs, pecuniary loss resulting from the impairment of capacities, and non-pecuniary loss. Some, but generally not all, loss claimed under the first two heads will constitute “special” damages (reflecting loss already incurred and provable at trial). The remainder will constitute “general” damages (loss which has either not yet been incurred or is not inherently quantifiable in money terms). The focus for present purposes is on general damages for non-pecuniary loss. While compensated as a single sum, this head is generally understood to incorporate pain and suffering, loss of amenities, disfigurement, and loss of expectation of life. The potential compensatory effect of apologies is, as might be expected, generally associated with the first of these. There remains debate over whether damages for non-pecuniary loss are compensatory in a strictly corrective sense (restoring what has been taken), or incorporate a somewhat broader focus on solatium and consolation (for ‘what has been lost and which might never be restored’: see Carroll 2020, p. 184, suggesting that the broader understanding is preferable). There has also been considerable debate over whether “mere” distress, short of a recognized psychiatric illness, should in itself be regarded as a compensable personal injury.5 The courts’ ability to make any award for non-pecuniary loss, and to set the amount of this award, have both been significantly affected by the civil liability reforms, although the detail of the relevant restrictions varies significantly between jurisdictions. For example, a ‘tariff’ system is in place in most jurisdictions according to the perceived severity of the loss in relative terms, while three states preclude any recovery at all unless a certain threshold is reached (Barnett and Harder 2025, paras. [7.66]–[7.71]). These limits reflect the fact that non-pecuniary losses ‘are regarded as less important, harder to quantify, and therefore easier to use to reduce the burden on insurers by cutting’ (Vines 2024, p. 222). They are among the many reasons for broader concerns expressed by practitioners, academics, law and policy makers about the systemic failure of the tort system to fairly and adequately compensate for negligently inflicted personal injuries.

It is also important to note two ways in which the law has already intervened to broaden the opportunities for plaintiffs to receive apologies (and other benevolent gestures) from a defendant. Apologies might, in such contexts, be understood as providing an alternative to compensation in monetary form. The first is to prevent an apology being used as adverse evidence of fault or liability in civil proceedings. Efforts to this effect have led to the adoption of apology-protecting legislation in many common law jurisdictions, including in Australia, the most comprehensive legislation being that enacted in Hong Kong.6 Essentially, apology-protecting legislation aims to remove legal disincentives to making apologies and in doing so to support early dispute resolution, thus removing the need for formal judicial intervention. The second is through ordering a defendant to provide an apology in the event of an unsuccessful defence (the “compelled” or “ordered” apology). Notwithstanding the potential, conceptually, for an ordered apology to serve similar remedial purposes to an award of compensatory damages (Carroll 2020, pp. 197 ff.), the writers have found no order to this effect in a negligence case in either common or civil law jurisdictions to date.

2.4. Apologies and Compensation for Negligently Inflicted Personal Injuries

We return to the question of apologies and compensatory judicial remedies. While much of the discussion of apologies and compensation in this paper may be translatable to broader tort and other legal contexts, the question we consider is specific. Imagine a plaintiff who claims to have suffered a negligently inflicted personal injury. Efforts at early dispute resolution and court-facilitated settlement are unsuccessful. The plaintiff proceeds to trial and the substantive hearing concludes, either with an admission of liability or, perhaps more likely in these circumstances, with a judicial finding of liability. The focus then shifts to remedies. The plaintiff presents a claim for special and general damages. The defendant argues that the award of general damages for non-pecuniary loss should be reduced, either because they apologized before or during the liability phase of proceedings, or because they are prepared to apologize now. Is this an argument that a trial judge should be prepared to accept?

Note that a defendant in this scenario is not being ordered to apologize. Nor are they being (directly) threatened with the prospect of a harsher remedy for failing to apologize. Any relevant incentives to apologize arising from the operation of apology-protecting legislation have run their course, since the liability phase of the proceeding is over (see Brutti 2021, p. 172). The only question remaining is remedial. The timing of the apology in this scenario is also deliberately unspecific, leaving open the possibility that a defendant may apologize after an adverse liability finding. If the focus of the inquiry is on compensating the plaintiff, then an apology with compensatory value should in principle be welcomed at any stage of proceedings. Or should it?

3. Apologies and Mitigation

‘[I]f apology is a therapeutic balm that may ease intangible loss more effectively than monetary damages alone, we should affirmatively encourage apologies and admit evidence of them to mitigate damages.’

(Shuman 2000, p. 188)

This section articulates the case for expanding the recognized compensatory dimension of apologies by treating them as a basis to reduce non-pecuniary damages in tort law more generally. To date, this case tends to be framed in terms of “mitigation”. In the United States, for example, Dan Shuman presented an influential early argument for incentivizing apologies by admitting them as evidence ‘to mitigate damages for intangible loss’ (Shuman 2000, p. 181). As we will explain, there are reasons to doubt the efficacy of this proposal. Before turning to consider the way apologies might be understood to mitigate compensatory damages in fault-based actions like negligence, however, we look to the approach taken in the assessment of damages in tort actions which are not fault-based.

3.1. Mitigation of Damages “At Large”

Apologies are already relevant to the assessment of damages in some tort cases. In intentional and other torts actionable without proof of damage, the trespass torts for example, it is presumed that a successful plaintiff has suffered loss; there is no requirement to prove the exact amount or nature of that loss. This contrasts with an action in negligence, for example, where every component of the award should in principle be traceable to an evidence-backed aspect of the plaintiff’s claim.

In the former situation, the law has perceived clear scope for an apology to be taken as lessening the sum of money required to achieve justice as between the parties. Damages “at large” may, as for example in an award for ‘loss of reputation’ in defamation, serve a mix of compensatory and non-compensatory purposes.7 In some such cases, in defamation for example, a defendant may be expressly permitted by statute to adduce an apology ‘in mitigation of damages’.8 The plaintiff’s evidence as to the effectiveness of the apology is a factor that may be considered; and it is clear that an apology which is not an attempt to right a wrong but instead is an attempt to escape from the consequences of wrongdoing will not be effective to mitigate damages.9 However, the assessment of damages “at large” is classically responsive to ‘injury to the plaintiff’s feelings caused by insult, humiliation and the like’.10 This kind of injury is both more conducive to a vindicatory or other non-compensatory response, and arguably more readily ameliorated by an apology, than pain and suffering in the wake of negligently inflicted personal injury.

Recognition of the remedial impact of apologies on damages awards for torts actionable per se is not, accordingly, necessarily translatable to claims requiring proof of loss.

3.2. Mitigation and Self-Help

The common law doctrine of mitigation applies to reduce or eliminate a civil plaintiff’s right to recover for loss which is otherwise within the scope of a defendant’s liability. It recognizes that plaintiffs do, sometimes, have the capacity to protect or restore their own position, and that they should be incentivized to do so. In a negligence claim, the focus of a mitigation argument is on the plaintiff, and in particular on the reasonableness of the plaintiff’s response to a situation not of their making. As might be expected, the threshold for unreasonableness is high.11

Mitigation is of course a word with broader legal (and social) meaning. In the broader legal context, it is more often used in relation to wrongdoers than victims and injured parties. In criminal law, in particular, mitigation stands in opposition to aggravation as justifying a reduction in the severity of a sentence. Apologies are most likely to feature in sentencing guidelines as an expression of remorse or contrition, and are, in that context, principally relevant to mitigating the culpability of the defendant (see, e.g., Proeve 2023). While the impact of a defendant’s conduct on an injured party (including the impact of any apology) is relevant, that will generally be regarded as a separately mitigating, or aggravating, factor.

Mitigation in this sense is also a feature of some civil proceedings in which fines and penalties are determined, for example where civil penalties apply and in a range of professional disciplinary contexts. As noted above, judges in defamation suits will consider a set of ‘mitigating’ factors, including the fact of an apology, in the course of settling the amount of damages for loss of reputation. However, also as noted, these damages serve both compensatory and vindicatory purposes. In those jurisdictions where exemplary (punitive) damages are available (which excludes Australia since the uniform defamation acts were introduced in the 1980s), a judge is interested not only in what is necessary to fairly compensate a plaintiff—the focus of a mitigation inquiry in negligence—but in the degree of the defendant’s culpability and the need for a punitive response.

We see it as important not to conflate mitigation in this punishment-infused sense with the doctrine of mitigation as it applies to limit the recovery of compensation in proceedings for negligence. The focus of the two inquiries is fundamentally different. If a plaintiff seeking compensatory damages is held to have failed to mitigate their loss, it means that they had a reasonable opportunity to reduce or eliminate the effects of the defendant’s wrongful conduct and have declined or failed to take that opportunity. Mitigation in this sense presumes relevant agency on the part of the plaintiff and requires nothing on the part of the defendant (except relevant proof). It represents a conscious departure from the principle of full compensation, but one that is controlled by the actions of plaintiffs rather than defendants.

An apology, by contrast and by definition, does not represent an exercise of agency by a plaintiff. A plaintiff may (or may not) have control over their response to an apology, but the apology itself can only originate from the defendant. If a defendant apologizes and then seeks to rely on the fact of the apology as a basis for reducing a damages award, that can only be an act of mitigation in the defendant-led sense. It is, in our view, more accurately characterized as a form of self-help by a defendant. Self-help in this context refers to ‘legally permissible conduct that individuals undertake absent the compulsion of law and without the assistance of a government official in efforts to prevent or remedy a legal wrong’ (Brandon et al. 1984, p. 850).12

It follows that if a defendant can point to the fact of having made an apology as a basis for reducing an award of general damages in negligence, that is not in our view “mitigation” in a relevant sense, and using the term is apt to mislead. The existence of an apology is, on its face, irrelevant to the question of whether a plaintiff has failed to mitigate otherwise compensable loss. Answering that question would require determining the subjective effect of any apology on the position of the plaintiff, or more specifically the reasonableness of the plaintiff’s response to the apology. In the absence of this determination, there is no plausible foundation for a “mitigation” argument.

To be clear, we are not denying that the presence (or absence) of an apology may be relevant to the question of how much non-pecuniary loss a plaintiff has suffered. Our aim at this point is to highlight the difficulty with the language of “mitigation” in this scenario. While we continue to use this term below where necessary to explain the arguments made by others, we prefer the more neutral language of ‘reducing damages’. Among other things, this enables more direct engagement with the question of whether an apology has reduced the compensable loss suffered by the plaintiff.

3.3. Apologies as Damages-Reducing

There has been considerable scholarly attention to the prospect of an expanded role for non-monetary remedies like apologies alongside compensatory damages for negligently caused losses. Prue Vines, for example, has advanced the argument that it is time to consider ordering apologies in addition to damages for negligence (see Vines 2017).13 There has also been considerable attention to the inherently problematic nature of non-pecuniary damages as compensation, with Jeff Berryman, for example, asking ‘what use [they can] be put to that is in any way connected to the harm actually caused’ (Berryman 2017, p. 531). One starting point for both lines of scholarship is the observation that any fault-based system inevitably limits the availability of monetary compensation in practice.14 Another is the observation that apologies and money are not fungible. While they both provide a form of compensation, they do not compensate in the same way. Their non-compensatory benefits, or implications, are also very different. This does not, however, mean that the relationship of apologies and money damages can be ignored. In situations in which an apology is or could be offered, but is not going to be ordered, we consider it reasonable to ask the question central to this paper—whether a defendant’s decision to apologize should, in some or all cases, be recognized through a lower award of non-pecuniary damages for personal injuries?15

The simplest, and least provocative, way to make the case for apologies as damages-reducing in negligence cases is to support their admissibility as evidence, in a particular case, that ‘the amount of damages needed to compensate a tort victim’s loss is less than would otherwise be the case’ (See Carroll (2020, p. 184), citing Berryman (2017, p. 532)). From here, as highlighted above, it is a further step to argue that apologies should be treated as a generally ‘loss-reducing factor’, by analogy with the approach taken in torts actionable per se (see Carroll (2020, p. 192)) or in criminal or disciplinary proceedings, discussed above. The justification for both arguments is essentially that apologies should be incentivized, representing a progression from the arguments for introducing apology-protecting legislation (Berryman 2017, p. 542; Brutti 2021, p. 168).

As noted above, Shuman has argued for the general admissibility of apologies as evidence ‘to mitigate damages’ in civil claims including negligence. Shuman develops this argument in the United States context, in which damages are assessed by a jury, and on the explicit assumption that the ‘sincerity of an apology and its impact’ can be evaluated by juries on ‘a case by case basis’ (Shuman 2000, p. 189). Having drawn the analogy with apologies ‘as mitigation’ in criminal and disciplinary contexts, but particularly with their impact on reputational damages for defamation, Shuman identifies three broad rationales for his proposal. First, existing efforts to remove disincentives to apologize (for example through apology-protecting legislation) are insufficient to affirmatively encourage apologies. Secondly, asking juries to assess the impact of an apology is no less elusive or tenuous than asking them to ‘quantify’ intangible loss in the first place, since this kind of loss is arguably not ‘compensable’ through money at all. Thirdly, apologies have the potential to help injured parties (and, in particular, injured feelings) in ways that monetary damages alone cannot.

Jeff Berryman has presented a more recent argument for the alteration of Canadian doctrine to this end, accepting the need for explicit justification if the position in torts like defamation is to be extended to other causes of action (Berryman 2017, p. 532). Berryman advances moral, social, and economic policy arguments to support the conclusion that it is worth providing the incentive of reduced damages for non-pecuniary loss (to be determined, again, on a case by case basis) in return for a sincere apology. The onus on the wrongdoer in such cases would be, he proposes, to ‘show that an apology typically reduces the non-pecuniary loss experienced by a reasonable victim placed in similar circumstances’ (Berryman 2017, p. 532 (emphasis added)). Notably, this could include cases where a victim has unreasonably refused to accept an apology, since the victim’s omission could, in these circumstances, represent a failure to mitigate their loss in the orthodox common law sense. Berryman’s proposal draws on ‘the new psychology on happiness’, and the idea that the amounts needed to redress some forms of non-pecuniary loss may actually be lower than historically assumed (assuming, that is, that compensation remains the only objective of these awards) (Berryman 2017, p. 538).

Brutti, who takes a more explicitly economic approach to incentivizing apologies, has gone further in a 2021 piece, stating as a fact that apologies ‘can mitigate the quantification of non-economic damages in negligence cases’ (Brutti 2021, p. 169 (emphasis added)).16 However, it is not clear that Brutti has in mind a situation in which the award being considered is strictly compensatory in nature, as distinct from one in which the court is empowered to pursue vindicatory or punitive objectives (as, for example, in a defamation or disciplinary proceeding).17 Further, and importantly, Brutti’s support for the damages-reducing function of apologies is limited to situations in which ‘a plaintiff expresses his preference for apologies and the defendant answers with a proper statement’ (Brutti 2021, pp. 170–71).18 He does not appear to support reducing damages on the basis of an unsolicited apology, and specifically excludes cases of ‘botched or false apologies’ (Brutti 2021, pp. 173–74), where an apology is undermined by a defendant’s subsequent conduct.

If a court hearing a negligence claim in Australia were presented with the argument that a plaintiff’s non-pecuniary damages should be reduced on account of an apology made by the defendant, these arguments would require careful consideration. Particular care would be needed to ensure that a development that might, on the one hand, incentivize apologies with compensatory and other benefits to plaintiffs would not, on the other, also incentivize the “weaponization” of apologies, with perverse consequences for the trial process and remedial outcomes. In the next section, we elaborate on this risk and our reasons for urging caution.

4. Incentivizing or Weaponizing Apologies?

As noted previously, legal principles create incentives and disincentives for certain types of behavior by the parties to a claim. Much of the law that encourages non-litigious dispute resolution and settlement agreements to save costs associated with litigation for parties and the justice system can be explained on this basis. In a similar way, the law can provide incentives and disincentives for parties in a dispute to apologize. Some scholars refer to ‘the incentivized apology’, which is seen as mitigating loss so that, if the apology is given, damages may be reduced.19 As the law currently stands, this incentive is only provided where damages aim to protect reputation, dignity and hurt feelings, in torts including defamation, privacy laws, trespass and false imprisonment.

The prospect of an ordered apology by a court can also be seen as creating an incentive for a defendant to apologize, because it is an alternative outcome to litigation for parties to consider in settlement negotiations. Daphna Lewinsohn-Zamir, a proponent of incentivizing non-monetary remedies, concludes that people see incentivized apologies as a greater indication of autonomy for a defendant than ordered apologies and that the former are therefore more likely to create behavioral change (Lewinsohn-Zamir (2015); see also Brutti (2020)). On this basis, she supports the “mitigation” approach over the ordered apology approach.

Significant concerns remain, however, that even on a mitigation approach, incentivized apologies in a legal context may become so strategic that they are perceived as undermining the proper social role of apologies (see, e.g., Taft 2000). This concern, and the related fear that apologies might be weaponized by lawyers as ‘a counter-movement against the principle of full compensation’ (Brutti 2021, p. 175), is hardly novel. We recognize why scholars like Brutti caution against being ‘hypercritical’ (Brutti 2021, p. 175) of apology-promoting proposals in a space where legal and ethical considerations are inevitably, and delicately, intertwined. Without wishing to attract this charge, we do see a clear risk of commodification and even weaponization of apologies in a context in which there is already an acknowledged risk of under-compensation. There are also more specific and often very practical objections to the proposals outlined above, which are yet to be fully explored.20 These range from the evidence and timing of apologies to reciprocity in the treatment of parties as autonomous agents and the expertise needed to determine the loss-reducing effect of an apology. We discuss these below before returning to the core question of incentives.

4.1. Why Are Damages Being Reduced?

The immediate question arising in response to the scenario set out in Section 2.4 above is: to what is a reduced award of damages responding? Is it the fact of an apology (and, perhaps, what it signifies about the defendant) that justifies a reduction in damages, or is it the impact of that apology on the plaintiff? In criminal or civil disciplinary contexts, where an apology “mitigates” the culpability of the wrongdoer, it may well be the former—although even in this context, there is likely to be room for case-specific argument about the sincerity and comprehensiveness of the apology.21 But in a proceeding for compensatory damages, as we have argued above, it is difficult to see how even the fullest of apologies—in a form most likely to have compensatory benefits—could be enough in itself to justify a reduced award. Even in defamation cases, in which damages serve a mix of compensatory and vindicatory objectives, courts are required to look not only to the fact of an apology but to the extent to which it is effective in achieving those objectives. Berryman is relatively isolated in his willingness to propose a reduction in damages on the basis of the fact of an (unreasonably refused) apology; and in doing so, he acknowledges that this would be an express policy-based departure from the compensation principle.

In our view, even though general damages for non-pecuniary loss for personal injuries are incommensurate to a monetary amount, they are still intended to compensate for actual loss. They should not therefore be reduced further because there has been an apology, unless the defendant proves that the apology actually has reduced the plaintiff’s non-pecuniary loss. This might seem self-evident, and indeed Shuman and Brutti (and Berryman, outside the ‘unreasonable refusal’ scenario) assume that it is the ‘impact’ or ‘effect’ of an apology which stands to be assessed and ‘quantified’.22 However, what seems to be missing from current proposals for apologies as damages-reducing is a satisfactory explanation of how this would work in a litigation context: particularly in situations in which an apology was either not admissible, or had yet to be made, at the time when the judge was hearing evidence.

It bears emphasis that while the making of an apology can be proven in simple, objective terms by the defendant alone, proving the impact of that apology requires evidence relating to the plaintiff. More specifically, it requires evidence of the plaintiff’s conduct and situation after the apology. This evidence would, in the normal course, be within the control of the plaintiff (and not of the defendant). But a plaintiff in this scenario has no obvious incentive to present it and may incur substantial additional expense and stress if obliged to do so. Even if the plaintiff has, in fact, benefited from the apology, and even if the plaintiff’s perception of that benefit aligns with the Court’s, the plaintiff is being asked to provide evidence that will, by definition, be used “against” them. A contrast can be drawn with a situation in which a plaintiff’s request for an apology has been ignored or refused by a defendant. In such a situation, a plaintiff might well be motivated, for both financial and non-financial reasons, to present evidence that the absence of an apology has increased their non-pecuniary loss. But as discussed below, existing proposals for apologies “as mitigation” do not appear to contemplate this kind of reciprocity.

The resource implications of proving the loss-reducing effect of an apology extend beyond the plaintiff. If an apology is made after an admission or finding of liability, there would have to be a separate hearing to enable such evidence to be tendered and assessed. Even if an apology is made before proceedings are initiated, if that apology is rendered inadmissible for liability purposes by apology-protecting legislation, then there would, as Shuman acknowledges, need to be a bifurcated trial to enable its admission for the purposes of ‘damage determinations’ (Shuman 2000, pp. 181, 189). It must at least be an open question whether any reduction in the award in such circumstances would outweigh the cost of additional investment of time and effort from the defendant, let alone the additional resources required from overburdened court systems.

Even in a situation in which an apology was made under such circumstances that it could be fully explored at trial without substantially greater time or cost, it seems unlikely that this would not entail a general (if partial) shift in focus from the loss suffered by the plaintiff to the culpability of the defendant (see Carroll (2020, p. 200)). That is certainly the impression from the original case presented by Shuman, with its focus on ‘sincerity’; and it would represent a significant departure from the usual approach to the assessment of compensatory damages in Australia and, most likely, elsewhere. While the assessment of aggravated damages, which function to increase the amount of a compensatory award, does imply at least some consideration of the defendant’s culpability, these damages are rarely sought or awarded in negligence cases (Tilbury 2018, pp. 215, 239–241). Aggravated damages are also still, ultimately, concerned with compensating the plaintiff rather than with punishing the defendant (a function reserved in principle for exemplary damages). However egregious the defendant’s conduct may have been, no award of aggravated damages should be made unless the Court is satisfied that this conduct actually aggravated the loss that the plaintiff would otherwise have suffered.

4.2. What of a Failure or Refusal to Apologize?

If an apology can reduce an award of compensatory damages, the inevitable question arises whether the absence of an apology (or, for that matter, an insincere, inadequate or ‘botched’ apology) can increase it. While Brutti does acknowledge this question (Brutti 2021, p. 172), it is not directly explored in his or other existing proposals. This in our view exemplifies the difficulty of relying by analogy on criminal or other forms of civil proceedings, in which the focus is naturally on both mitigating and aggravating features of a defendant’s conduct, and in which the original wrongdoing is likely to have been intentional.

There does not seem to be any scholarly support to date for treating the absence of an apology as increasing compensable loss, even if the presence of an apology in the same circumstances would be assumed to reduce it.23 But it is not immediately clear why this should be so. One recent European study found surprisingly little evidence that admissions and apologies in a medical malpractice context were considered to reduce the amount needed to compensate a patient’s pain and suffering. What did come through, across a sample of several hundred ‘ordinary citizens’ from 10 countries, was that the absence of an admission and apology was ‘by many considered as an especially aggravating element’ (Bijleveld et al. 2023, p. 16). This study is not presented as justifying the adjustment of compensatory awards (either upwards or downwards); the focus is on supporting apologetic behavior more generally for therapeutic and dispute resolution purposes. However, the observation that the suffering of an injured party might be “aggravated” by the absence of a meaningful apology is hardly a radical one. Indeed, as Berryman highlights, the trend of research since Shuman’s original proposal tends to call into doubt his optimism that apologies will not, in any event, make things worse (Berryman 2017, p. 540). While a sincere (or even an insincere) apology may, in some cases, be effective to reduce non-pecuniary loss, it is arguable that an insincere or cynical apology has the potential to exacerbate it. In our view, this potential needs to be taken into account in weighing the benefits and disadvantages of shifting the law in this direction.

As we saw in Section 3.1 above, apologies have an established role as a factor relevant to the assessment of damages in torts which protect intangible interests—in particular reputation, dignity, and privacy—by enforcing and vindicating rights. This role is not only damages-reducing; apologies may be relevant to the assessment of aggravated damages. In privacy cases, for example, a court takes into account ‘the whole of the conduct of the defendant to the time of verdict which may have the effect of increasing the injury to the person’s feelings’.24 Apologies can also be a factor in the assessment of exemplary (punitive) damages when they are available. It is relevant in this context to note Brutti’s point that a court which penalizes a wrongdoer for refusing to apologize is putting a price on that specific choice, rather than on the original violation (Brutti 2021, p. 170). It seems unlikely that this kind of moral judgement about the defendant’s conduct would be seen as defensible in a purely compensatory action for negligence. But that is exactly the difficulty with the general case for “mitigation”: it seeks to reward a defendant for a choice made independently of their initial negligence. So there does seem to be another issue of reciprocity here.

4.3. What If the Apology Is Not Accepted?

‘While focusing most efforts on the offender, one may forget that the victim still has the discretion of accepting or rejecting the apology.’

(Kaspar and Stallworth 2012, p. 11)

As one of us has explained elsewhere (Carroll 2020, p. 189ff.), one of the features of apology-protecting legislation is that it offers incentives to defendants to make sincere apologies for non-strategic reasons (that is, reasons beyond rendering the apology inadmissible as evidence), including the potential to improve the prospects of settlement. Importantly, legislation of this kind ‘also allows for the victim rather than the court to assess the value of the apology’ (Carroll 2020, p. 195). It does not require the victim to accept an apology and it does not preclude them from pursuing full compensation. Arguably, allowing a defendant to “mitigate” an award of compensatory damages through apologizing would risk doing both.

The effectiveness of an apology in any particular case, including its effectiveness as a form of compensation, depends on a range of factors relevant to both the maker and recipient, including potential divergence in their subjective perceptions. Psychological research shows that what constitutes an apology for the recipient is a highly unique and subjective experience (Allan and Carroll 2016, p. 10). So is the perceived value of that apology. Timing, for example, is a complex issue from an injured party’s perspective. Even if an apology made years after the event is genuine and effective, in the sense of “mitigating” a wrongdoer’s culpability, Shuman recognizes that ‘the passage of time decreases the likelihood that a victim will remain open to the benefits of an apology or regard it as sincere’ (Shuman 2000, p. 186). In a scenario in which a defendant has previously made the decision to put the plaintiff to proof of liability, an effective remedial response may, as Shuman observes, need to address ‘not only the harm of the initial wrong but the “iatrogenic” harm of the litigation process’ (Shuman 2000, p. 188). It is not always clear which form of harm an apology is seen as compensating for, at least in situations where an apology is made at a very late stage. We accept the potential for the emotional distress and suffering associated with personal injuries to be addressed in ways that recognize and mitigate the harmful effects of the litigation process, including through apologies (Akkermans 2020, pp. 21–22). However, it may become increasingly difficult to assume as time passes that even a sincere apology will have any compensatory effect.

It is worth reiterating here the limited value of analogies with torts in which there is an express remedial purpose of vindication, and accordingly an element of objectivity, for example in what is necessary to restore a defamed plaintiff’s reputation in the eyes of the public. In such situations, a plaintiff’s decision to accept or reject an apology may not have a bearing on the legal significance of the apology, other than to the extent that their decision is consonant with the objective determination by a judge of its significance. Where the question is solely one of compensation for non-pecuniary loss, however, it is surely difficult to defend any rule which disregards the actual experience of the plaintiff. We are in this respect in partial agreement with Brutti, who would limit the “mitigating” potential of apologies to situations in which they represented a ‘proper’ response to an express request from a plaintiff (Brutti 2021, p. 170). Berryman’s suggestion that plaintiffs would have to act reasonably in refusing a proffered apology, lest they be seen as having failed to protect their own interests (Berryman 2017, p. 532), has the advantage of approaching a more orthodox, plaintiff-focused approach to mitigation.25 But it does so in a way which is difficult to reconcile with the inherent subjectivity of apologies as an interpersonal act, and with the acknowledged centrality of plaintiffs’ agency in existing apology-promoting reforms. It also brings into focus the question of how judges should approach the task of quantifying the compensatory effect of apologies, particularly in the not-unlikely scenario in which that effect is disputed.

4.4. How Well-Placed Are Judges to Make This Assessment?

Having worked carefully through a significant volume of empirical evidence, Berryman reaches the same conclusion as Shuman: that there is no way—at least not yet—to accurately quantify what impact an apology should have on monetary awards for non-pecuniary losses (Berryman 2017, p. 540).

The fact that, as Brutti puts it, ‘we cannot measure the impact of apologies on someone’s feelings or soul in economic terms’ (Brutti 2021, p. 169) is not of course prohibitive. Judges (and juries) are regularly called upon to measure the unmeasurable. On one view, the entire field of damages for intangible loss is ‘lacking a cogent theoretical or empirical foundation’ (Shuman 2000, p. 189). It does not however follow that questions of capacity and consistency can be disregarded altogether. It bears noting that Shuman’s proposal is premised on damage assessments by juries, which, in his view, can be understood to channel or reflect broader ‘societal values and beliefs’ (Shuman 2000, p. 189). It is no longer clear, if it ever was, that the judges who adjudicate negligence claims in Australia are seen as performing this society-reflecting function. Judges in common law systems like Australia may be increasingly diverse in their personal and professional backgrounds, but they are not representative of the general population; unlike elected politicians (or juries), representation is not formally part of the judicial role (see Kiefel and Saunders (2015)). When judges attempt to ‘measure the impact of apologies’, they generally do so by reference to legal norms and precedents rather than by reference only to social norms. The judicial approach may be far removed from the reasonable perceptions of both maker and recipient of a disputed apology.

Further, and importantly, the professional skillset of judges is not generally a scientific one. Before being appointed, a judge in Australia must be a successful legal practitioner. There are few, if any, other formal prerequisites to appointment. Despite growing international consensus about the importance of specialized professional training prior to commencing judicial duties,26 it is still considered potentially unconstitutional to mandate any form of judicial training in Australia (Falck and Kerr 2023, p. 622). This is relevant for present purposes because of the increasing wealth of social science and other disciplinary research and knowledge about apologies and their effects. Unless this knowledge is specifically explained to a judge through the medium of expert evidence in a trial (which has resource implications), it is not safe to assume that it will be reflected in a damages judgment. On the contrary, Berryman has noted the ‘long-standing aversion’ of the common law ‘to absorbing insights from psychiatry and psychology on human behaviour into its doctrines’ (Berryman 2017, p. 535). We should not be taken to suggest that the current Australian judiciary shares this aversion. The receptiveness of most judges to training initiatives, including on ‘non-legal substantive topics that contextually inform the practice of the judicial role’, is increasingly well documented (Appleby et al. 2022, p. 195), and there are a number of specialized judicial education institutions in Australia with impressive and popular work programs in these spaces.27 However, even if historical resistance to ‘external’ influences on judicial decision-making continues to fade, there are limits of both principle and practice to how much judges can incorporate scientific knowledge into legal processes of reasoning. Any development which expands the role of judges in adjudicating apologies and their impact on a plaintiff’s non-pecuniary loss is likely to end up testing these limits. We think that carefully designed, and consistently delivered, judicial training would prove to be an important balancing component of any development towards apologies as damages-reducing. We emphasize, however, that such training would not provide a complete answer to any of the difficulties identified in this paper.

4.5. The False Promise of Incentivized Apologies as Compensation

Conceptually, the incentive-based argument for treating apologies as a basis for reducing compensatory damages has merit. Accepting the relevance of apologies to the assessment of non-pecuniary damages in negligence would, surely, be likely to encourage more defendants to apologize of their own volition. On an optimistic view, this development could be seen in the same light as apology-protecting legislation, as supporting a form of self-help that might more effectively address the non-monetary needs of both parties (see Carroll 2020, p. 199). It is usefully contrasted with the alternative prospect of ordered apologies, which would remove the autonomy of the defendant. It might also be seen as supporting the autonomy of plaintiffs, to the extent that it prioritizes and responds to any desire on their part for an apology and their capacity to heal.

On a more cynical view, though, the potential for instrumental apologies in this context is clear. While an insincere apology may still have real value to some injured parties, for example because it is vindicatory or has some humbling or shaming effect on the defendant (see Vines (2024, p. 216)), it is notable that existing proposals for incentivizing apologies “as mitigation” do not take this for granted. They are all premised on sincerity. There is, however, little evidence to support this premise in relation to defendants who would not have apologized in the absence of the incentive: especially when, as in our scenario, liability was originally contested, and the wrongdoing itself was probably not intentional. We also think it is important to acknowledge the potentially perverse incentive for plaintiffs to reject or minimize an apology which they would otherwise have wanted and valued.

Taking the position of defendants first, it is not at all clear that moral externalities would (as suggested by Brutti (2021, p. 171)) be effectively reduced if apologies were taken into account in assessing compensatory damages. On the contrary, the risk of commodifying apologies seems particularly acute in this context. Offering a concrete reduction in damages to a defendant who chooses to apologize is surely some version of “buying” an apology, which ‘fundamentally destroys its inherent value [as] an intangible good’ (Brutti 2021, p. 170).28 Moral difficulties aside, there is also the question of what interests the relevant legal rule is seeking to protect. As discussed, where damages are in principle solely compensatory, the “mitigating” effect of an apology cannot be justified by reference to the vindication of protected interests, or the punishment of the defendant, in the eyes of society at large. The only relevant measure is the loss suffered by the plaintiff as a result of the defendant’s negligence. The only way around this difficulty would be to take the position that every apology is loss-reducing; and this is a position that proponents of apologies “as mitigation” are, in our view correctly, not yet prepared to take.

It is worth reflecting here on the parallel between an apology offered with a view to a lower damages award and a guilty plea offered with a view to a lower sentence. Insincere guilty pleas are among the most concerning and intractable features of criminal justice systems (see, e.g., Redlich et al. (2025)). While the balance of power as between the parties may be very different in a civil negligence claim, in a situation in which a defendant is not or does not consider themselves to be at fault, the basic concern with incentivizing insincerity is the same. Some defendants will see an insincere acceptance of responsibility for non-intentional wrongdoing as a small price to pay for an improvement in their financial circumstances. This is an aspect of the case for apologies as damages-reducing which, in our view, needs more attention. It is not sufficient to respond that judges will filter out insincere apologies (if the challenges noted above can be addressed), or that plaintiffs may still receive some limited compensatory benefit from them.

There is another structural aspect of negligence claims that is important in considering the balance of incentives for both plaintiffs and defendants. Most personal injury cases are initiated by individual plaintiffs, who are first-time litigants, and defended by insurance companies and other corporate defendants, who are repeat litigants. An apology which is effectively dictated by a corporate insurer, at a point when it becomes clear that a plaintiff is likely to succeed (or has already succeeded) in establishing liability, is far removed indeed from an apology as a spontaneous interpersonal response. There must be room for doubt that an apology which is, or is perceived to be, from an insurer rather than an individual defendant can safely be assumed to have equivalent, if any, compensatory effect.

As regards the impact of “incentivized apologies” on plaintiffs more generally, the key contextual consideration in personal injury cases is that, as noted, plaintiffs are already likely to be under-compensated. It is not simply a case of “swapping out” a component of a damages award that would otherwise accurately (so far as any monetary award can) reflect the nature and extent of the loss suffered. In such circumstances, it is important to look beyond the prospect of altering the behavior of defendants to consider how the prospect of a reduction in damages would be likely to alter the behavior of plaintiffs. A plaintiff who is already concerned about the adequacy of a damages award to meet their current and future needs has no incentive to accept that an apology has met or diminished those needs, when that might result in an even more inadequate award. On the contrary: the incentive is, if anything, to downplay the impact of an apology, or even reject that apology as insincere or incomplete (at least in communications with the Court). That has the potential to place a plaintiff who has received a much-needed apology in a truly perverse, and counter-productive, position. In a situation in which an offered apology is sincere and meaningful, the rejection or minimization of that apology also has potential impacts for the defendant (both financial and non-financial), as well as for any ongoing relationship between the parties. Again, our objection is not that conceptually an apology cannot serve a meaningful compensatory function. Our concern is for incentive-based arguments for apologies “as mitigation” to reflect how the balance of incentives would be likely to operate in reality, at least in negligence claims in Australia.

5. Conclusions

It is becoming more common for judges to engage explicitly with apologies in the adjudication of civil disputes. This paper has discussed and raised questions about proposals to treat a defendant’s apology as a mitigating factor in the assessment of non-pecuniary damages for negligently inflicted personal injuries. It acknowledges the potential benefits of apologies made in the aftermath of these injuries. It also accepts the general argument that the law should incentivize apologies in the interests of early and effective resolution of disputes, and that an apology may reduce the need for damages which serve to vindicate the plaintiff’s rights and punish the defendant. There is a risk, however, that incentive-based developments along these lines in the assessment of compensatory damages would effectively weaponize an apology in a defendant’s hands to the detriment of the plaintiff and the compensation principle. This paper has sought to highlight this and other risks in giving effect to apologies “as mitigation” in negligence cases.

We note that any development along these lines in Australia would occur against the backdrop of tort reforms that aim to address the concern that intangible losses are incalculable and too high for insurers to cover, including statutory limitations on the amount of non-pecuniary damages. Such reforms have contributed to the concern about under-compensation more generally. We consider that reducing damages for personal injuries based on a defendant’s apology would exacerbate this concern by further eroding the quantum of compensation currently available to plaintiffs.

The risks associated with apologies becoming perceived as damages-reducing more broadly than under current law are, in our view, arguably too great to justify opening the door to any proposal for apologies as a mitigating factor in negligence cases. We conclude that while there may be incentives for defendants to encourage trial judges—or legislatures—in this direction, any movement should be resisted, at least until arguments for developing the law along these lines are more fully ventilated with regard to the risks and concerns identified in this paper.