Could the Duke of Edinburgh have said it with flowers?

Could the Duke of Edinburgh have said it with flowers?

In record short time for “the law” the Duke of Edinburgh was evidently given permission to apologise to Emma Fairweather for being involved in the accident. Her plea for an apology, at a time before anyone had officially established the actual cause, raises an issue that sounds with thousands of accident victims in all walks of life. The need to say “sorry” and the penalty for saying it.

It can safely be assumed that Fairweather’s car crash with the Duke of Edinburgh’s Land Rover was something neither of them would have intended when they set out on their journey. Therefore, whatever the circumstances of how it happened, it would have been an ‘accident’.

It is, however, a generally accepted “convention” in English common law that neither party should apologise to the other after an accident because to do so constitutes, in the eyes of the law, an admission of fault. Furthermore, insurance companies put a special clause in every policy that entitles them to void it if the Insured has said or done anything that can be construed by the law as an admission of fault. Saying “sorry” can give the insurer a right to deny all policy cover.

Natural courtesy

Saying “sorry” is nevertheless a natural reaction, in a civilised society and failure to apologise can too easily be construed as rudeness, at best.  If you unintentionally bump into someone in the pub, the natural reaction is to say “sorry”. If your “accident” collision spills their drink you offer to buy another. More often than not that offer is refused, but the courtesy of acknowledging  that it was not an intentional assault very often dispels the chances of further counter attack. No harm is done and some good often comes out of it; people speak to each other!

By contrast, road rage is often the result of an unintended and sudden manoeuvre that  happily avoids a collision but annoys the “victim” driver- who, because “he” cannot hear an apology, assumes it was a deliberate, hostile act; and fights back. The consequences of road-rage accidents are often horrendous.

A remote apology, such as sending a bunch of flowers or a card is still, in the eyes of the law, an admission of fault; even if accompanied by a message headed “without prejudice”. But would it be helpful if an apology were permitted?

Sometimes the error leading to the accident constitutes negligence, in law, for which compensation in the form of damages is claimable but even so it does not mean that the error of skill or judgement was intentional. Time after time, though, victims of unfortunate accidental events simply want an apology from the party they perceive as the being in the wrong even more than they want the compensation money. Why shouldn’t they have both?

Should the convention in law be changed?

It is not just in motor accidents that the need to say “sorry” is paramount to some people. The frustration of not being able to apologise can have devastating effects on people involved in all kinds of accidents. For example, doctors who make mistakes, in surgery or clinical prescription, will often know if they were at fault and would dearly like to say sorry and make amends – but “the law” prohibits it. Almost everybody who provides a service to others, sells goods or just provides voluntary or good neighbourly support is likely to make a mistake at some time in their career or private life and when they do, they too typically want to say “sorry”.

A parent that loses a baby at birth or a husband that loses his wife in childbirth cannot be adequately compensated by money alone but thousands of doctors, nurses, lawyers and victims of the accident will attest to the healing power of a simple apology.

Modern evidence – so powerful

It is a fundamental principle of our law that “he” who damages another, or “his” property shall compensate them for the damage. That principle should not be changed or even tampered with.

If saying “sorry” was not construed to be an admission of fault but, rather, a humane acknowledgement of an unintended event would it really prejudice any later examination of which party was, in fact, at fault?  Saying “sorry” for being present at the time of the accident does not in itself constitute any prejudice in fact that will not nowadays be proven or disproven by competent expert  investigation.

Forensic science, camera footage, eye-witness accounts, cell-phone videos have all developed to the most sophisticated of levels in the last thirty years or so and so no competent investigation of the facts will be influenced by what one shocked party says to the other, at time. The chances are their own respective recollections will have been different in any case and so forensic investigation will be required to determine the train of events that led to the accident and so to attribute due compensation.

The future – an opportunity?

Is it possible to have the best of both worlds? The ability to say “Sorry, I hadn’t intended that to happen” without those words being held by a court of law to be an admission of fault?

If that is what society wants, there are certainly plenty of lawyers able to re-write the convention’s rules.

R H Flaxman

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