Rob

From: Robert Stevens [mailto:robert.stevens@ucl.ac.uk]
Sent: Thu 29-Oct-09 4:56 PM
To: 'Hedley, Steve'; obligations@uwo.ca
Subject: RE: Liability of public authorities to apologize

Sorry (sincerely) Steve, I was unclear. 

I approve of orders of this kind, for very much the reasons you give. I
don't think damages are awarded to make good losses but rather to achieve
the nearest approximation to the wrong not having been committed. One way of
illustrating that is, as you say, damages for pain and suffering. I approve
of them too, and think their (partial?) abolition in Australia is based upon
a misconception of what damages are there to do.

Apologies are similarly substitutive in the sense that they are our doing
something in place of what we can no longer do (not commit the wrong in the
first place). We use the word apology in the sense of a (poor) substitute as
well (eg "Stevens' apology for a book on the law of torts".)

I wonder however whether it is right that something which is an expression
of regret which is wholly insincere really is an apology in the proper
sense. We see the same thing with children all the time.

"Apologise to your sister for hitting her."
"Soo-rrrrryyyyy"
"No, that isn't an apology, you must mean it."

I am minded to think that an insincere apology doesn't exist, like a
truthful lie. That doesn't mean that compelling expressions of regret isn't
a good thing.
Rob

-----Original Message-----
From: Hedley, Steve [mailto:S.Hedley@ucc.ie]
Sent: 29 October 2009 08:35
To: obligations@uwo.ca
Subject: RE: Liability of public authorities to apologize

Well, there are two points here - whether a compelled apology is really an
apology at all, and whether an order to apologise can be an appropriate
response to a wrong.

On the semantic point, I'm afraid ordinary usage is against Rob.  An
insincere apology is still an apology - no doubt it is a different thing
from a sincere apology, but it's still a species of apology.  As to which is
more satisfying, I think that will depend on the circumstances and the
parties involved. Some people would get considerable satisfaction from an
insincere apology, knowing that their wrongdoer will really hate having to
make it. And whether that's something we should encourage must depend on
wider considerations than have been canvassed here. Much the same issues
have been raised in relation to restorative justice (which, at the risk of
oversimplifying, is mostly about making the perpetrators of crimes act as if
they were sorry).

On the remedies point, I don't see the problem.  Remedies for torts almost
never give back precisely what was lost. Someone who loses a leg or the use
of a leg doesn't get back that thing, but rather a sum of money.  Sometimes
the correspondence between what was lost and what is awarded is small,
sometimes it is large, but there is almost always a significant difference
(and if Rob is against apologies, I can't see how he can be in favour of
damages for pain and suffering, where again the remedy bears only the most
distant relation to what was lost).


Steve Hedley
UCC





-----Original Message-----
From: Robert Stevens [mailto:robert.stevens@ucl.ac.uk]
Sent: 28 October 2009 20:28
To: Lionel Smith, Prof.
Cc: ODG
Subject: Re: Liability of public authorities to apologize


Can an apology be involuntary?

I don't think so. An apology is a voluntary recognition of wrongdoing.
They ought to apologise but can a court order compel a genuine apology?

Making someone going through the form of making an apology like this is
like putting the wrongdoer in the stocks. It is a way of expressing our
condemnation of the wrong which has been done, in a public and
humiliating
way, but it isn't really an apology. I approve of any order which seeks
to
place the plaintiff in as near a position as can be achieved to the
wrong
not having occurred, and this has no necessary connection with making
good
by compensation of any loss suffered as a result of the wrong.

We see the same thing in the UK all the time with newspapers issuing
"apologies" for libels. The Sun may go through the form of making an
apology, but it isn't really apologising.

Rob

> Earlier this year, a Canadian taxpayer brought a claim in the BC
Supreme
> Court against the Canada Revenue Agency for bad faith tax
investigation.
> He
> succeeded in negligence and also obtained a remedy under s. 24 of the
> Charter for the breach of his s. 8 right to be secure against
unreasonable
> search and seizure. Section 24 provides,
>
> 24. (1) Anyone whose rights or freedoms, as guaranteed by this
Charter,
> have
> been infringed or denied may apply to a court of competent
jurisdiction to
> obtain such remedy as the court considers appropriate and just in the
>  circumstances.
>
> As you can see in the attached documents, the jury awarded $300,000
for
> negligence, with zero for punitive damages. However, for the s. 24
claim,
> they awarded $1,000,000 and ordered the Minister to apologize to the
> plaintiff. I am not sure whether this has happened before under s. 24
(or
> in
> any other context except perhaps a Seinfeld episode). But others might
> know
>  better.
>
> The Crown has appealed....
>
>  Lionel
>
>


--
Robert Stevens
Professor of Commercial Law
University College London