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BBA LLB Section D 19010496
A SORRY MAY LAND YOU IN THE
JAIL
Imagine you feel sad for your friend as he is suffering from depression after a tragedy and offer him a sorry to make him feel better. And the next day you have been accused of causing that tragedy just because you said sorry! Isn’t this scary? Helix, a doctor performed surgery upon Alex who was suffering from a serious injury. After the surgery, Alex’s condition worsened due to other unknown health conditions. Helix, who felt sorry for him, apologized to Alex and his family. Dr Helix does not understand why Alex said that he would see him at the court. He then receives a lawsuit for medical malpractice stating that he was responsible for Alex’s medical condition. Later at the court Alex claimed damages by arguing that Dr Helix rendered apologies to him in the hospital which implied that Dr erred on his part and was thus responsible for his worsened medical condition. The court by applying literal rule^1 agreed with the prosecution on the basis that an apology as defined in various dictionaries is known to be a regretful acknowledgement of an offence.^2 However it begs the question of whether the apologies (^1) The words in the statues are clear as to be interpreted in their ordinary sense without considering the counsel’s perspective of the words to make sense. (^2) Apology, Oxford Advanced Learner's Dictionary (2020), https://www.oxfordlearnersdictionaries.com/definition/english/apology?q=apology (last visited Oct 15, 2020).
BBA LLB Section D 19010496 rendered by Dr Helix suggested that he has actually committed an error and was apologising out of guilt of committing that error. According to the judgement, Helix is facing punishment for the crime he did not commit because he apologised to simply sympathise with Alex and his family and not out of guilt of committing medical malpractice. Although this is just an illustration, there is every possibility for this to happen in actual court proceedings as well, because there is no apology law in place to give a definite meaning to an apology in the legal sense and also no clarity as to its admissibility in the courts. Therefore, a codified apology law is required in all the fields of law firstly to prevent the usage of apology as an affirmation in the courts to prove an accused person guilty of an illegal act and secondly to avoid confusion due to contradicting precedents about its definition and admissibility in the courts. An apology is a word generally used in everyday life; however, it is not always the scene that an apology is an admission of guilt. Kleefeld in his paper, Thinking Like a Human: British Columbia's Apology Act, refers to an apology as the four R’s^3 , that is: Responsibility as “I know what I did was wrong”; Remorse as “I’m sorry” or “I apologize”; Reparation as “how can I make this up to you?”; and Resolution as “I promise this won’t happen again”. Since childhood, parents and teachers have been teaching the young ones that offering and receiving an apology is a social norm and everyone is expected to have this moral quality. (^3) John C. Kleefeld, Thinking Like a Human: British Columbia's Apology Act , 40 University of British Columbia Law Review 786 (2007), https://ssrn.com/abstract=1937545 (last visited Oct 13, 2020).
BBA LLB Section D 19010496 these judgements in these cases were possible because the State of Vermont has an apology provision in place according to which an expression of regret or apology by health care provided is inadmissible^6. But an apology to a victim by an accused may be taken as an affirmative in courts for judgements not only in medical cases but also in crimes and various other fields of law. In the case of Usher v. Jones^7 , a man was accused of killing his wife and the court ruled that he is guilty of murdering his wife, which was proved by taking into evidence his notes to his children which said, “You won't believe me, but your mother was a whore and no good to anyone. Please forgive me. Dad”; “Dear Stacy, baby, I'm sorry. Your mother did deserve what she got for doing the way she did. She was nothing but a two-bit whore who made me do what I did”. In this case, the magistrate judge held that the trial court's admission of the notes into evidence did not violate due process of law. There was another case of sexual harassment , Pieczynski v. State^8 , in which the defendant’s statement that he was sorry and could not help himself was admissible as an admission from which guilt could be inferred in the court. According to the friend, Pieczynski began to mumble apologies and said he "couldn't help himself" and that he "had the same problem with his own daughter.” The jury, in this case, stated, “However, the first part of Pieczynski's statement, that he was sorry and could not help himself, is admissible as an admission from which guilt could be inferred”. In India, there is no statutory framework that can facilitate an apology which can be made without the fear of consequences. However, it was held by the apex court in Awadh Kishore Das v. Ram Gopal and Ors****.^9 where an apology was accepted as admission and effective proof of facts which raise estoppel and shift the burden. The latest judgment was passed by the Delhi High Court in Union of India v. K. Asaiah^10 had agreed with Awadh Kishore Das^11 judgment_._ The Hon’ble Court in Debabrata Bandopadhyay and Ors vs. The State of West Bengal^12 while (^6) The Vermont Statutes, Title 12, Chapter 081, Sub-chapter 001, Section 1912. (^7) Larry Dewayne Usher v. Jimmy Jones, 943 F.2d 889 (1991). (^8) Daniel Pieczynski, v. The State of Florida, 516 So. 2d 1048 (1987). (^9) Awadh Kishore Das v. Ram Gopal and Ors_._ (1979) 4 SCC 790 (^10) Union Of India v. K. Asaiah W.P.(C) 4682/ (^11) (1979) 4 SCC 790 (^12) Debabrata Bandhopadhyay v. State of West Bengal 1969 AIR 189
BBA LLB Section D 19010496 discussing whether the respondent’s apology for the inconvenience caused to the complainant for the said service deficiency amounts to admission, it held that mere apology does not amount to an admission of deficiency on the part of the party.^13 Thus contradicting cases like these are creating an ambiguity as to the admissibility in the courts. As seen in the picture above, the recent codification of an Apology Act by Canada has been made a fun fact as people are not aware of the importance of this act. There are very few countries which have enacted an apology law. Especially in Asia, there are a handful of countries which understood the necessity of an apology law and enacted it. Another issue that requires attention is that the countries which have enacted apology laws mostly focused on medical and accident cases, whereas in a practical sense an apology as evidence is being used (^13) Id.
