Bearing in mind I am writing for a British audience, who apologise when another person walks into them on the street, it is surprising how much traction this piece of folklore still has.
Apology = sadness
In English law an apology has never been an admission. The position, in a bit of flummery dressed up as ‘taking on the compensation culture’ in the Compensation Act 2006, simply restated the pre existing common law position that an apology is simply an expression of sadness. It can’t amount to an acceptance of legal liability. In order for an admission to be binding in English law it must be in writing, formal and made after a potential claim has been intimated.
Years ago I was instructed in a small car park knock in a supermarket. A motorcyclist was paddling his bike backwards, a female driver went into the space next to the motorcyclist, both were moving but it seemed more that the motorcyclist was the first one moving and the driver was at fault, but it was one of those things.
My motorcyclist whose bike sustained no meaningful damage agreed with the driver that neither would report it to their insurers. My motorcyclist (and I am not sure what his motivations were, but I think he fancied the driver) emerged from the shop with a bunch of flowers. And in due course, when the driver’s insurers contacted him, much was made of the ‘apology’ and ‘the flowers’ as proof of guilt, conflated up as though it were a signed confession from a serial killer.
It was very discomforting for my rider. He approached me as his insurers were intending to settle the claim and he was a young man with an already expensive insurance premium. As it transpired the insurers dropped the case after a short exchange of letters, a photograph of the two or so foot long scratch, window scuff and dent at handlebar height on the young woman’s car. The inference being the car must have driven for a short period with the bike’s handlebar end in contact with the car. It was beyond belief a rider paddling his bike backwards could have inadvertently carried on for two feet with his handlebar wedged against the car.
This little case predated 2006. The then common law position was perfectly good. However, the 2006 Act codifies the position. An apology, an offer of treatment or other redress cannot amount to an admission of negligence or breach of duty. However, what people say at a collision scene is most definitely relevant.
I have lost count of the amount of times distressed drivers have stood in the vicinity of significantly more distressed motorcyclists telling anyone who would listen, ‘I just never saw him/her; or’s/he wasn’t there when I pulled out: This type of admission is relevant to liability as motorcyclists are not invisible and if you do not look you will not see. What people at a collision scene say and see is most definitely relevant but as evidence, not admission.
Bike Magazine February 2023