Beyond Compensation: Apology as a Private Law Remedy

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Beyond Compensation: Apology as a Private
Law Remedy
robyn carroll*
An apology has the potential to help people who have suffered serious
emotional harm through the wrongdoing of others in ways that monetary
damages alone cannot.1
A. INTRODUCTION
People who have been injured, insulted, or hurt often want an apology
from the person responsible for their suffering and loss. We see evidence
of this on a daily basis in the press: in claims by tort victims of defama-
tion, of sexual assault, and of negligence, particularly medical malprac-
tice. This experience is by no means confined to civil wrongs; apologies
are sought from defendants by victims of crime2 and in claims against
* I am grateful for the research assistance of Carolyn Moss, Tim Ayling, and Shannon
Thompson. I am also grateful to Dr. Normann Witzleb for his insightful and helpful
comments on two drafts, and for the feedback and comments of delegates who at-
tended the Second International Symposium on the Law of Remedies, Auckland, 16
November 2007, where the paper on which this essay is based was presented. Any
errors and omissions, of course, are my own.
1 Daniel W. Shuman, “The Role of Apology in Tort Law” (2000) 83 Judicature 180 at
180. This quotation is taken from the extended title of the article.
2 This is evident from the role that apologies play in restorative justice programs, and
from media reports such as the call by the mother of Nicole Miller for an apology to
be offered to her daughter for injuries sustained by a man convicted of maliciously
inflicting grievous bodily harm by criminal assault. See Ed Logue, “Rock Victim
Still Owed Apology” The Australian (6 March 2008), online: www.news.com.au/
story/0,23599,23330046-1702,00.html.
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324 Beyond Compensation: Apology as a Private Law Remedy
governments,3 and by governments.4 Where no admission of wrongdoing
and apology is received, civil proceedings may be the only way for a person
to obtain satisfaction, even though obtaining a legal remedy may not have
been his original objective. While it is well known that apologies play an
important part in settling disputes, healing emotional wounds, and mov-
ing toward forgiveness and reconciliation, traditionally they have not been
regarded as being within the province of the law. However, case law and
legislative developments in the past few decades indicate that in some
areas of private law, the law is prepared to take a more proactive approach
to apologies in order to acknowledge and address the needs of those who
have suffered emotional harm and indignity. This essay will analyze these
developments in the law of remedies.
When pecuniary loss is caused by civil wrongdoing, an award of dam-
ages is often the most appropriate remedy. An aim of damages is to com-
pensate those who have suffered the loss by placing them, as nearly as
possible, in the position they would have been in had they not sustained
the wrong.5 A long history of case law and academic writing reveals the
many challenges that courts have faced in giving effect to the compensa-
tion principle. Where the wrong causes non-pecuniary loss, the award of
monetary damages and the application of the compensation principle pose
even greater challenges for the law.
This essay proceeds on the following three premises. First, the law
does and should, in appropriate circumstances, award damages for mental
distress and loss of dignity. Mental distress encompasses a wide range of
emotional harm, including suffering and grief, but also injury to pride and
feelings, and diminution in self-esteem and self-respect.6 Loss of dignity
refers to the injury to dignity itself, as distinct from feelings associated
3 The most recent among numerous examples of apologies sought from governments
is the Apology to the Indigenous Peoples of Australia by Prime Minister Rudd in
Federal Parliament. See Commonwealth of Australia, Parliamentary Debates, House of
Representatives, 13 February 2008 at 167 (Kevin Rudd, Prime Minister).
4 For a recent example, see the call on the United States and its allies by Iranian
President Mahmoud Ahmadinejad to apologize to Iran for accusing it of seeking
nuclear weapons, after the United Nations nuclear watchdog released its latest
report on Iran’s atomic program. See “Iran Seeks Apology for Nuclear Claim”
The Australian (25 February 2008) online: www.theaustralian.news.com.au/
story/0,25197,23268608-2703,00.html.
5 Livingstone v. Rawyards Coal Co. (1880), 5 App. Cas. 25 at 39, Lord Blackburn.
6 Paula Giliker, “A ‘New’ Head of Damages: Damages for Mental Distress in the Eng-
lish Law of Torts” (2000) 20 L.S. 19 at 20.
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Robyn Carroll 325
with loss of dignity that can be characterized as mental distress.7 This is an
important distinction. Where there is interference with protected dignitary
interests, which encompass personal interests in liberty, privacy, reputa-
tion, and freedom from unlawful discrimination,8 the law’s remedial re-
sponse sometimes is stronger than its response to “mere” mental distress,
extending, for example, to coercive remedies and exemplary damages.9
The availability of aggravated damages in these instances is further evi-
dence of the law’s strong response to interference with dignitary inter-
ests. Second, the primary purpose of awarding non-pecuniary damages
is compensation. Compensation can include solatium for injured feelings
and other intangible losses, as well as recompense for harm measurable
in money.10 Third, an award of damages can serve purposes other than
compensation: as declaratory of the fact that that the plaintiff’s rights have
been infringed11 and to vindicate the rights of the plaintiff.12
The potential of a role for apologies within the law of remedies is
linked to the challenges that result from using damages to compensate and
achieve other remedial purposes for mental distress and loss of dignity.13
7 Jeffrey Berryman, “Reconceptualizing Aggravated Damages: Recognizing the Digni-
tary Interest and Referential Loss” (2004) 41 San Diego L. Rev. 1521 at 1522 [Berry-
man, “Reconceptualizing Aggravated Damages”].
8 Peter Cane, The Anatomy of Tort Law (Oxford: Hart Publishing, 1997) at 71–74. This is
not an exhaustive list of dignitary interests protected by the law of torts. More recent
developments include judicial recognition of autonomy as a protected interest; see
Rees v. Darlington Memorial Hospital NHS Trust, [2004] 1 A.C. 309 [Rees v. Darlington];
Chester v. Afshar, [2004] 4 All E.R. 587. See also Anthony Dugdale & Michael Jones,
eds., Clerk & Lindsell on Torts, 19th ed. (London: Sweet & Maxwell, 2006) at para. 1-31.
Defining dignity, locating protected dignitary interests, and determining an appropri-
ate remedial response, including the relationship between compensatory damages and
the award of a conventional sum, are some of the challenges involved in protecting
dignitary interests. Two essays in this book that make an important contribution to
this area of scholarship are Grant Hammond, “Beyond Dignity” (c. 6) and Michael
Tilbury, “Coherence, Non-Pecuniary Loss, and the Construction of Privacy” (c. 5).
9 Berryman, “Reconceptualizing Aggravated Damages,” above note 7 at 1522.
10 Uren v. John Fairfax & Sons Pty Ltd. (1966), 117 C.L.R. 118 at 150, Windeyer J. [Uren v.
John Fairfax].
11 This is the purpose of nominal damages. See, for example, The Owners of the Steam-
ship “Mediana” v. The Owners, Master and Crew of the Lightship “Coment,” [1900] A.C.
113 at 116, Lord Halsbury L.C.
12 Ashby v. White (1704), 3 Ld. Raym. 320; Constantine v. Imperial Hotels Ltd., [1944] K.B.
693 (nominal damages for wrongful refusal to receive and lodge the plaintiff); Uren v.
John Fairfax, above note 10 at 150, Windeyer J. (damages for defamation).
13 Shuman, above note 1, for example, argues for the apology to be given a greater role
in the assessment of damages for negligence. Note that while Shuman advocates that
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326 Beyond Compensation: Apology as a Private Law Remedy
This essay focuses on the potential for ordered apologies to complement
and enhance the work of non-pecuniary damages.14 The need to redress
wrongful conduct in ways other than by monetary compensation explains,
in very large part, the growing interest in the apology in recent years.15
To date, however, little attention has been paid to the role of the apology
within the law of remedies.16
The law does already recognize that apologies have a remedial role to
play in the resolution of legal disputes. There are laws that are “remed-
ial” in the very broad sense of supporting the resolution of legal disputes.
Included in this broader category of remedial laws are rules of evidence
which state that communications made in settlement negotiations and
mediation, including apologies that constitute an admission, are confiden-
tial and inadmissible in subsequent legal proceedings.17 Another example
is legislation that limits the admissibility of apologies in civil proceedings
to establish liability for personal injury, damage to property, and economic
loss.18 This legislation, referred to in this essay as “apology legislation,”
apologies have a therapeutic role to play in tort law, he does not advocate for apologies
to be ordered as a remedy for tort.
14 It is most likely that a plaintiff will seek damages where they have also suffered pecu-
niary losses.
15 The principal example is legislation that aims to encourage apologies in the civil
liability context. Enactments to this effect have become popular in the United States,
Australia, and Canada. See, for example, Jonathan R. Cohen, “Legislating Apology:
The Pros and Cons” (2002) 70 U. Cin. L. Rev 819 [Cohen, “Legislating Apology”];
Prue Vines, “Apologising to Avoid Liability: Cynical Civility or Practical Morality?”
(2005) 27 Sydney L. Rev. 483 [Vines, “Apologising to Avoid Liability”]. The no-fault
compensation scheme in New Zealand accounts for the absence of this legislation
in that jurisdiction; see John Kleefeld, “Thinking Like a Human: British Columbia’s
Apology Act” (2007) 40 U.B.C. L. Rev. 769 (page reference not yet available).
16 There is “a paucity” of academic discussion on the appropriateness of court-ordered
apologies; see Brent White, “Say You’re Sorry: Court Ordered Apologies as a Civil
Rights Remedy” (2006) 91 Cornell L. Rev. 1261 at 1270.
17 These laws aim to encourage open and candid communication between the parties,
and to apply to a range of communications likely to be made in the settlement of
disputes; see R. Carroll, “Apologising ‘Safely’ in Mediation” (2005) 16 A.D.R.J. 40.
They include legislation conferring privilege on settlement negotiations generally and
on communications made during specified dispute resolution processes. See, for ex-
ample, Evidence Act, 1995 (Cth), s. 131 (excluding evidence of settlement negotiations)
and Federal Court of Australia Act, 1976 (Cth), s. 53B (rendering communications in
mediation inadmissible in subsequent proceedings).
18 In Australia, see Civil Liability Act, 2002 (N.S.W.), s. 69; Civil Liability Act, 2002 (Tas.),
s. 7; Civil Liability Act, 1936 (S.A.), s. 75; Civil Liability Act, 2003 (Qld), s. 72; Civil Law
(Wrongs) Act, 2002 (A.C.T.), s. 14; Civil Liability Act, 2002 (W.A.), s. 5AH. The scope
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Robyn Carroll 327
can be argued to have a remedial purpose, even though there are other
underlying objectives and functions.19 Inherently, legislation that privil-
eges settlement negotiations and apology legislation recognizes that apolo-
gies are a form of social interaction that can assist in recovery, forgiveness,
and reconciliation. The increased emphasis on settlement processes that
improve the likelihood of meaningful dialogue between parties also rec-
ognizes that judicial proceedings and remedies often do not meet the
psychological needs of plaintiffs.20 While acknowledging that apologies
have the capacity to be “remedial” in this general sense, and may be all
the “relief” that a plaintiff seeks, “remedy” is used in the remainder of
this essay to mean an order of a court as a discretionary response to civil
wrongdoing.21
Within the law of remedies, a distinction must be drawn between the
apology as a remedy and the apology as a factor in the assessment of dam-
ages. The law has long recognized the significance of an apology, or the
lack thereof, as an aggravating factor in assessing damages for torts that
protect dignitary interests.22 The clearest example of the apology order as
a remedy is where power to make the order is conferred by statute.23 It is
also available as a remedy for common law wrongs by courts vested with
equitable jurisdiction to make coercive orders, including mandatory in-
junctions.24 For many reasons, as we will see, this is a power that courts
will be slow to exercise. Nevertheless, the availability of apology orders
for statutory causes of action, and the slowly emerging body of case law
concerning orders to apologize under statute, challenge the common law
and operation of this legislation differs between jurisdictions. The most significant
distinction is between laws that provide that an apology that does not contain an ad-
mission of liability (a “partial apology”) is inadmissible in subsequent legal proceed-
ings, and laws that make an apology inadmissible even if it is an admission of liability
(a “full apology”). For analysis of the Australian legislative models and commentary,
see Vines, “Apologising to Avoid Liability,” above note 15.
19 See Cohen, “Legislating Apology,” above note 15; Vines, ibid.; Kleefeld, above note 15.
20 See, for example, N. Des Rosiers, B. Feldthusen, & Olena Hankivsky, “Legal Com-
pensation for Sexual Violence: Therapeutic Consequences and Consequences for the
Legal System?” (1998) 4 Journal of Psychology, Public Policy and Law 433.
21 This meaning of remedy is one of five meanings attributed to “remedy” by Birks, who
referred to it as “a right born of a court’s order issued on a discretionary basis”: Peter
Birks, “Rights, Wrongs and Remedies” (2000) 20 Oxford J. Legal Stud. 1 at 16.
22 For example, for the tort of defamation, see Rookes v. Barnard, [1964] A.C. 1129
[Rookes v. Barnard]; Carson v. John Fairfax and Sons Ltd. (1993), 178 C.L.R. 44.
23 See Part B.1, below.
24 See Part B.2, below.
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328 Beyond Compensation: Apology as a Private Law Remedy
orthodoxy that the apology has only a limited role to play in the assessment
of damages and does not have a role as a private law remedy.
Before turning to examine the law on apology as a remedy, Part B will
explain the meaning of “apology” and how it is used in this essay. Part C
draws on claims brought under equal opportunity laws, and the few com-
mon law cases that consider the issue, to identify a range of remedial pur-
poses of an apology. Part D discusses the reasons why the law might want
to make orders to apologize. Part E addresses legal principles and other
concerns that are likely to be raised. Part F considers the circumstances
in which consideration might be given to the apology as a remedy. Part G
concludes that the law recognizes that plaintiffs are often looking for more
from the law than compensation in monetary form, and that the apology
will sometimes have a role to play in that regard. While not suggesting that
there will be many circumstances where an apology will be an appropri-
ate remedy for wrongs, it is important to analyze the remedial potential of
apologies so that a rational and consistent jurisprudence is developed.
B. THE MEANING OF APOLOGY
Much attention is paid to the meaning of apology in the literature on apol-
ogies. Sociological, psychological, and ethical studies and scholarship re-
veal the paradox of the apology — that this simple act of speech is deeply
complex.25 The law has had little to say about the meaning of apology: it
is rarely the subject of analysis and, where it is, the meaning is treated as
self-evident.26 Where the word “apology” is defined by legislation, it is to
circumscribe the application of liability or evidentiary rules.27 To a very
large extent, the literature that helps us to understand the theoretical basis
of an apology, and the social and psychological literature on what makes
an apology meaningful, is not referred to or applied by the courts. Again,
this can be explained largely by the limited number of occasions that the
apology has arisen as a legal consideration.
25 The leading work on the sociology of the apology is generally acknowledged to be
Nicholas Tavuchis, Mea Culpa: A Sociology of Apology and Reconciliation (Stanford: Stan-
ford University Press, 1991). Further valuable insights from a psychological perspective
are provided by Aaron Lazare, On Apology (Oxford: Oxford University Press, 2004).
26 For a rare example, see Ma Bik Yung v. Ko Chuen, [2002] 2 H.K.L.R.D. 1 at para. 34
[Ma Bik Yung].
27 See, for example, Civil Liability Act, 2002 (N.S.W.), s. 68; Civil Liability Act, 2002 (Tas.),
s. 7; Civil Liability Act, 2003 (Qld), s. 71; Civil Law (Wrongs) Act, 2002 (A.C.T.), s. 13;
Civil Liability Act, 2002 (W.A.), s. 5AF.
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Robyn Carroll 329
The meaning of apology is critical to any analysis of its function with-
in society. Most scholars work with a meaning of apology that has, as a
minimum, the core elements of an expression of regret or remorse and
an acknowledgement of fault or responsibility for wrongdoing.28 Some re-
searchers and commentators go further and include as core elements an
offer of some form of compensation, repair, or restitution, and a promise
to avoid such behaviour in the future.29 Additional elements include hope
for an improved relationship in the future and the physical expression of
emotions by the offender, including feelings of sorrow, sadness, and vis-
ible shame.30
The complexity of apologies is reflected in the diverse views expressed
in the literature as to their nature and function.31 While theories on apolo-
gies are still developing, there appears to be no doubt that heartfelt and
sincere apologies can help to heal psychological hurt, restore a victim’s
dignity, and assist with forgiveness and reconciliation.32 One’s view as to
the validity and effectiveness of an ordered apology will be shaped by one’s
views on what an apology is and the role of law. One perspective is that the
law has no role to play because the apology is a moral act that will have
no worth or value if it is offered as a legal requirement or for legal pur-
poses.33 Another perspective, more instrumental in nature, is that the law
has a role to play in creating opportunities for apologies to be offered that
achieve some social or psychological benefit.34
28 Alfred Allan, “Apology in Civil Law: A Psycho-Legal Perspective” (2007) 14 P.P.L. 5 at 7.
29 See, for example, Hiroshi Wagatsuma & Arthur Rosett, “The Implications of Apol-
ogy: Law and Culture in Japan and the United States” (1986) 20 Law & Soc’y Rev. 461.
30 See Carrie Petrucci, “Apology in the Criminal Justice Setting: Evidence for Including
Apology as an Additional Component in the Legal System” (2002) 20 Behav. Sci. & L.
337 at 341.
31 Petrucci identifies at least nine functions of the apology ascribed by various authors
and researchers: ibid. at 341–42. On current theories on the use and effectiveness of
apology, see also Erin O’Hara & Douglas Yarn, “On Apology and Consilience” (2002)
77 Wash. L. Rev. 1121.
32 Steven Scher & John Darley, “How Effective Are the Things People Say to Apologise?
Effects of the Realization of the Apology Speech Act” (1997) 26 Journal of Psycholin-
guistic Research 127. The authors cite a simulation study they conducted to conclude
that the greatest improvement in perception about a transgressor came from the
offering of an apology, as compared to no apology.
33 Tavuchis, above note 25; Lee Taft, “Apology Subverted: The Commodification of Apol-
ogy” (2000) 109 Yale L.J. 1135 [Taft, “Apology Subverted”]; Lee Taft, “On Bended Knee
(with Fingers Crossed)” (2006) 55 DePaul L. Rev. 601 [Taft, “On Bended Knee”].
34 See, for example, Jonathan R. Cohen, “Advising Clients to Apologize” (1999) 72 S.
Cal. L. Rev. 1009 [Cohen, “Advising Clients to Apologize”]; Elizabeth Latif, “Apologetic
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330 Beyond Compensation: Apology as a Private Law Remedy
The ordered apology brings this debate into even sharper focus, as it
contemplates an apology that is not offered willingly and is most likely
not sincere. Whether the apology comes about unwillingly and seems in-
sincere will depend very much on the circumstances. A defendant found
at trial to be liable may concede at that point that they are in the wrong
and be willing to give an apology in the terms sought by the plaintiff or
ordered by the court. This will be an ordered but willing apology.35 It might
even be given sincerely. In other circumstances a defendant might contest
the request or order to apologize even after they have been held liable.
This will remain an unwilling apology and by definition cannot be sincere.
Unwillingness itself is not an obstacle to the grant of a remedy: the law
already grants other remedies against unwilling defendants.36 As we will
see, however, coercive orders are rarely made that compel speech. What
the law clearly cannot compel is sincerity of remorse, sorrow, or regret.37
For some people, therefore, an ordered apology, especially an unwilling
apology, cannot by definition be an apology.
Where a court exercises the power to order an apology, “apology” must
be understood to have a narrow meaning. Essentially it will be an acknow-
ledgement by the defendant that he has committed a wrong against the
plaintiff and that the plaintiff has suffered harm as a result. Depending
on the circumstances, the ordered apology in its terms might incorpor-
ate other elements of an apology, for example, an expression of regret or
remorse, or a promise to avoid such behaviour in the future. In advancing
the view in this essay that the law should give consideration to a plaintiff’s
request for an apology order in some circumstances, it is assumed that a
plaintiff will only seek an ordered apology where it will have meaning to
the plaintiff as an apology. It is also assumed that a plaintiff is aware that
an apology made pursuant to an order may be insincere but that it will still
have remedial value to them. While this may be problematic, it is submit-
Justice: Evaluating Apologies Tailored Toward Legal Solutions” (2001) 81 B.U.L. Rev.
289.
35 Ma Bik Yung, above note 26, discussed below.
36 Injunctions and an order for specific performance compel action, or inaction, by an
unwilling defendant.
37 Miller argues that of all the major moral sentiments, “arguably none is easier to fake
than remorse, the emotion at the core of apology. Neither remorse nor guilt . . . has a
characteristic facial expression”; see William Miller, Faking It (Cambridge: Cambridge
University Press, 2003) at 78. It is this fact that likely is a significant factor behind
the law’s preference for redress to be in tangible form (damages), even for intangible
harm.
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Robyn Carroll 331
ted that the plaintiff is best able to evaluate the importance of sincerity and
the value of an apology, just as the plaintiff can judge whether to seek or
accept an apology at all.38
C. STATUTORY AND CASE LAW PRINCIPLES
The principal area where orders to apologize have been made in common
law jurisdictions is equal opportunity law. The wording of the order will
vary depending on what is requested and what the court considers appro-
priate in the circumstances.39
1) Orders to Apologize — Equal Opportunity Claims
a) Australia
In Australia, legislation enacted by State, Territory, and the Common-
wealth governments prohibits discrimination and harassment on grounds
including race, sex, disability, age, and other characteristics. Some legisla-
tion expressly confers on courts, boards, or tribunals the power to order
a respondent to a complaint to apologize and make such retractions as
considered appropriate by the decision maker.40 It may also order that the
apology or retraction be published in such manner as the court thinks
fit.41 Other anti-discrimination legislation does not expressly confer the
38 In reality, a plaintiff is more likely to be satisfied by an apology given pursuant to a
court order, albeit involuntarily, than they would be by an apology offered in privil-
eged settlement negotiations and subject to a confidentiality agreement, especially if
the offer is made with no admission of liability.
39 With further deliberation it may be possible to develop terminology for a judicial
order that achieves the aim of an ordered apology but involves less distortion of the
meaning given to the word “apology.” As seen in Part B, the meaning of apology is
complex and can be used to describe a multitude of social interactions. For example,
an “Apology” is often published to satisfy consumer protection legislation, essentially
as a correction that may include an expression of regret for inconvenience caused.
It is problematic to use the same word to describe the expression of sorrow, regret,
and remorse that might be offered following an accident by a wrongdoer to a parent
whose child has been injured or killed.
40 For ease of reference, in the balance of this essay the parties will be referred to as
“plaintiff” and “defendant.” The word “court” is used to include boards and tribunals.
41 See, for example, Anti-Discrimination Act, 1977 (N.S.W.), s.108(2)(d). See Western Ab-
original Legal Service Ltd. v. Jones & Anor [2000] NSWADT 102 for a decision applying
the predecessor to s. 108, namely, s. 113 of the Anti-Discrimination Act, 1977 (N.S.W.),
amended in 2004 by the Anti-Discrimination Amendment (Miscellaneous Provisions)
Act, 2004 (N.S.W.); Anti-Discrimination Act, 1992 (N.T.), s. 89, which confers powers
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332 Beyond Compensation: Apology as a Private Law Remedy
power to order an apology or retraction, but it does authorize the court to
order the defendant to perform any reasonable act or course of conduct to
redress any loss or damage suffered by the complainant.42
There are numerous Australian cases where the grounds of dis-
crimination or harassment have been made out and a defendant ordered
to apologize to a plaintiff.43 The remedy is often accompanied by an award
of damages.44 In De Simone v. Bevacqua,45 for example, the plaintiff was
awarded $50,000 compensation against her employer for harassment by
a co-worker and discrimination by her employer. The defendant employer
company was ordered to apologize to the plaintiff in writing and dissemin-
ate copies of the apology to other employees. An appeal to the Supreme
Court of Victoria was heard by McDonald J., who held that s. 46(2)(c) of
the Equal Opportunity Act, 1984 (Vic.) conferred power on the Equal Op-
portunity Board to order this, as ss. (c) provides that the Board “may or-
der the respondent to perform any acts specified in the order with a view
to redressing any loss or damage or injury suffered by the person who
made the complaint as a result of the act of discrimination.” The Court
concluded that it was open to the Board to conclude that the plaintiff, in
consequence of the defendant’s discriminatory treatment of her, had suf-
fered loss, damage, and injury that included loss of dignity, humiliation,
and psychological injury. In those circumstances McDonald J. concluded
that the Board may order an apology as part of the compensatory remedy
to be afforded to a claimant.
In other cases the order to apologize is the only order made. In Falun
Dafa Association of Victoria Inc v. Melbourne City Council,46 for example, the
Victorian Civil and Administrative Tribunal, constituted by Bowman J.,
held that an order of apology could be made in the absence of orders for
monetary compensation. In February 2003, the Melbourne City Council
on the Anti-Discrimination Commissioner; and the Anti-Discrimination Act, 1991
(Qld), s. 209.
42 See, for example, Equal Opportunity Act, 1995 (Vic.), s. 136(a)(iii); Equal Opportunity
Act, 1984 (S.A.), s. 96; Equal Opportunity Act, 1984 (W.A.), s. 127(b)(iii); Anti-Discrimin-
ation Act, 1998 (Tas.), s. 89.
43 See, for example, Ballarat University College v. Bridges & Anor (1994), E.O.C. 92-627;
Wilkinson v. Buchan & Abre Pty Ltd. (2003), E.O.C. 93-290.
44 For a table of collected cases, including a summary of orders made in equal opportun-
ity cases in Australia, see CCH Australia, “Comparative Table: Damages Awarded” in
Australian and New Zealand Equal Opportunity Commentary, looseleaf, at para. 89-950.
45 (1994), 7 V.A.R. 246; (1994), E.O.C. 92-630 [De Simone cited to E.O.C.].
46 [2004] VCAT 625 [Falun Dafa].
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Robyn Carroll 333
excluded the Falun Dafa Association of Victoria from participating in the
2003 Moomba Parade on the basis of its political associations, in contra-
vention of the Equal Opportunity Act, 1995 (Vic.). The Association sought
an injunction, an apology, and costs. The Tribunal refused to grant an in-
terim mandatory injunction that would require the Council to permit the
Association to participate in the parade.47 The Association further sought
a permanent injunction in relation to future participation, an apology for
the breaching of the Act and the costs associated, but it abandoned claims
for compensation for wasted expenses and humiliation, as well as aggra-
vated damages and interest. The application for a permanent injunction
was refused48 but, following a separate hearing on the question of the re-
lief available and appropriate under the Act, the Tribunal ordered that the
respondent publish an apology in terms set out in the order.49
Section 136, subparagraphs (a)(ii) and (iii) of the Equal Opportunity
Act, 1995 (Vic.) provide:
136. After hearing the evidence and representations that the parties to a
complaint desire to adduce or make, the Tribunal may —
(a) . . .
(ii) . . . order that the respondent pay to the complainant within a
specified period an amount the Tribunal thinks fit to compen-
sate the complainant for loss, damage or injury suffered in con-
sequence of the contravention;
(iii) . . . order that the respondent do anything specified in the order
with a view to redressing any loss, damage or injury suffered by
the complainant as a result of the contravention . . .
It was argued for the defendant that in the light of the words “with a view
to redressing any loss, damage or injury” in s. 136(a)(iii), there can be no
order under that provision unless the plaintiff can show that they have
suffered some loss, damage, or injury. In this case, it was argued that the
corporation had abandoned its claim for general damages and had not
demonstrated any injury, loss, damage to feelings, or hurt. The defendant
argued that, in any event, as the plaintiff was a corporation, it cannot have
feelings and cannot therefore receive damages in respect of hurt to its feel-
ings or its reputation. As to whether there was any injury, loss, or damage,
47 Falun Dafa Association of Victoria Inc v. Melbourne City Council, [2003] VCAT 378.
48 Falun Dafa Association of Victoria Inc v. Melbourne City Council [2003] VCAT 1955.
49 Falun Dafa, above note 46. Details of the place of publication and form of the Notice
containing the apology were specified in the orders.
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334 Beyond Compensation: Apology as a Private Law Remedy
Bowman J. held it sufficient that the plaintiff’s members had “suffered
considerable inconvenience, preparing for and pursuing an enterprise
from which it was wrongfully excluded.”50 Although he was satisfied this
was sufficient on its own, his Honour also relied on the adverse effect
on the Association’s reputation (assumed by the Court) of being excluded
from the parade, and on its loss of opportunity to spread its message con-
cerning its culture and beliefs.
As to the meaning of s. 136(a)(iii), Bowman J. disagreed that redress
was confined to general damages by the phrase “loss, damage or injury.”
He concluded that while s. 136(a)(ii) seems to envisage the payment of
monetary sums, s. 136(a)(iii) contemplates an alternative or additional
remedy and continued:
Whilst any order made pursuant to it is made “with a view to redressing
any loss, damage or injury”, it does not seem to me logical that any such
order must be made so as to reduce, replace or supplement monetary re-
lief. The relief afforded by s. 136(a)(iii) seems to me to be a “stand alone”
option. It presupposes the existence of “loss, damage or injury” but does
not specify that these must be in the nature of matters which would at-
tract general damages.51
Bowman J. concluded, therefore, that the legislation permits the ordering
of “non-compensatory relief, such as an apology.”52 This, he stated, is con-
sistent with the objectives of the Act set out in s. 3, in particular “(a) to
promote recognition and acceptance of everyone’s right to equality of op-
portunity,” and “(d) to provide redress for people who have been discrimin-
ated against or sexually harassed,” He continued: “Indeed, redress in such
a form could be said to be closer to the spirit and objects of the legislation
than awards of monetary compensation, although, of course, the latter is
also made available.”53
As to the issue of whether an apology can be ordered in favour of an
incorporated body, Bowman J. concluded that because a corporation can
be a complainant under the Act, there is no reason why it should not have
50 Ibid. at para. 34.
51 Ibid. at para. 28. This construction has been applied in similarly worded statues in
other Australian jurisdictions,for example, in Chew v. Director-General of the Depart-
ment of Education and Training (2006), 44 S.R. (W.A.) 174 [Chew]. Also, for additional
cases, see CCH Australia, above note 44 at para. 89-950.
52 Falun Dafa, above note 46 at para. 28.
53 Ibid. at para. 31.
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Robyn Carroll 335
available to it all forms of relief set out in s. 136.54 Although in some cases
it has been considered inappropriate to order an apology by a corporate
body,55 a submission to this effect was rejected in Falun Dafa.
These two cases — De Simone and Falun Dafa — make it clear that the
court must find that there has been loss, damage, or injury as a conse-
quence of the conduct the subject of the complaint. Once that has been
established, an apology can be ordered as a “reasonable act” for the defend-
ant to perform, even where no monetary award is sought or made.
b) Canada
Orders to apologize have been made in Canada by the Human Rights
Commission,56 the Labour Relations Board, and arbitrators against em-
ployers who have violated their duties to prevent discrimination and ha-
rassment under collective agreements and the Human Rights Code.57 There
are, for example, cases in which orders to apologize have been made in
favour of aggrieved employees for failure to act promptly and effective-
ly to eliminate harassment in the workplace.58 In Re Clarendon Founda-
tion and Ontario Public Service Employees Union, Local 593,59 an employer
found to be in violation of duties under the relevant collective agreement
and the Human Rights Code was ordered to apologize to an employee for
failing to take steps to eliminate the harassment resulting from racially
discriminatory remarks made to the employee by a consumer.60 Orders
to apologize have been made in employment cases for breaches of other
duties under collective agreements. In Re ABT Building Products Canada
Ltd. and Communications, Energy and Paperworkers Union of Canada, Lo-
54 Ibid. at para. 33.
55 See, for example, Grulke v. K.C. Canvas Pty Ltd. ACN 057 228 850 [2000] FCA 1415.
56 See, for example, Swan v. Canadian Armed Forces (1994), 25 C.H.R.R. 312 and Grover
v. National Research Council of Canada (1992), 18 C.H.R.R. 1.
57 The aim of conferring wide powers on boards of arbitration by the Canadian Labour
Code has been to create a single forum for determination in complaints under the
Human Rights Code. See Re Canadian National Railway Co. and United Transporta-
tion Union (2005), 136 L.A.C. (4th) 270, referring to the fact that the Human Rights
Commission defers processing complaints of Human Rights Code violations if the
complaint can be determined under a collective agreement.
58 See, for example, Re Clarendon Foundation and Ontario Public Service Employees
Union, Local 593 (2000), 91 L.A.C. (4th) 105; Re ABT Building Products Canada Ltd.
and Communications, Energy and Paperworkers Union of Canada, Local 434 (2000), 90
L.A.C. (4th) 1.
59 Ibid.
60 Human Rights Code, R.S.O. 1990, c. H.19.
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336 Beyond Compensation: Apology as a Private Law Remedy
cal 434,61 an employee alleged that the employer breached the collective
agreement between the parties by suspending the employee for five days
without sufficient cause and by defaming the employee. The employee
sought reimbursement for five days of wages and consequent benefits lost,
damages, and a written apology for defamation. The arbitrator found that
the employee had been wrongfully suspended and ordered that there be
full compensation for all pay and benefits lost as a result. The defamation
claim was also made out and the arbitrator made an order for an apology.
The order to apologize involved a number of related actions. It required
a written acknowledgement in letter form of the arbitrator’s finding and
employer’s wrongdoing, as well as a written apology for “hardship or un-
happiness” caused by certain events. Further, the order required that the
letter be placed on the plaintiff’s employment file, and that the employee
be free to publish the letter to named employees.62
An order of apology has also been recognized as a potential remedy on
equal opportunity grounds under the Canadian Charter of Rights and Free-
doms (the Charter). In Perera v. Canada,63 a number of employees alleged
individual and systematic discrimination by their employer on the basis of
race or national or ethnic origin, contrary to the equality rights in s. 15 of the
Charter.64 The relief sought included an order directing that the employer
give letters of apology to the employees.65 The plaintiffs’ claim for this and
the other forms of relief was based on s. 24 of the Charter. That section
confers “a right to an individual to seek a remedy from a competent court”
and allows the court “to fashion remedies when constitutional infringe-
ments occur.”66 The defendants sought to have the plaintiffs’ statement of
61 Above note 58.
62 Publication of an ordered apology is not uncommon. In Re Dana Canada Inc. and
United Steelworkers of America, Local 4605 (2005), 142 L.A.C. (4th) 409, for example, a
company was found to have breached the collective agreement through an employee
and directed to write a letter to the Union containing an apology for its employee’s
conduct, and referring to an intention on its part to abide by the provisions of the
agreement. Copies of this letter were ordered to be sent to the bargaining unit mem-
bers identified in the group grievance.
63 (1998), 158 D.L.R. (4th) 341 [Perera v. Canada].
64 Being Part I of the Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11
(U.K.) [R.S.C., 1985, Appendix II, No. 44].
65 Other relief sought included that the Council of Intellectual Disability Agencies adopt
a special program to rectify the adverse effect of discriminatory practices and imple-
ment an employment equity program.
66 Perera v. Canada, above note 63 at 350, Letourneau J.A. for the Court, citing Lamer J.
(as he then was) in Nelles v. Ontario, [1989] 2 S.C.R. 170 at 196.
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Robyn Carroll 337
claim (the grounds of which will not be considered here) and claim for re-
lief struck out as disclosing no cause of action. The Federal Court of Appeal
concluded that in an action under s. 24 of the Charter, the courts must be
free, if they find in the plaintiff’s favour, to fashion the remedies that they
deem appropriate in the circumstances. In this case, the Court concluded
that the only objection that could be raised against the letter of apology
was that it is a remedy that, by its very nature, would contravene s. 2(b) of
the Charter, which protects freedom of expression. The Court concluded
that it was premature for the prayer for relief in the form of an apology to
have been struck out at this stage of the proceedings. Whether the order
to apologize would be a justifiable infringement of the s. 2(b) freedoms of
thought, belief, opinion, and expression under s.1 of the Charter could not
be answered in the abstract without knowledge of all of the circumstances
of the case. Justice Letourneau for the Court of Appeal concluded:
I believe the Trial Division of this Court has jurisdiction pursuant to sec-
tion 24 to provide effective remedies for breaches of a citizen’s constitu-
tional rights to equality and it cannot be ruled out that, in the context of
systemic discrimination and circumstances warranting, such remedies,
in order to be just and appropriate, may take the form of the orders
sought by the appellants.67
The remedial potential of a public apology for wrongful arrest in viola-
tion of Charter rights has also been recognized by the Nova Scotia Court
of Appeal.68
c) Hong Kong
In Ma Bik Yung v. Ko Chuen,69 the plaintiff successfully brought an ac-
tion in the District Court under the Disability Discrimination Ordinance
against the defendant taxi driver for discrimination and harassment in the
provision of services. The plaintiff, a paraplegic in a wheelchair, sought
the services of a taxi for herself and her sister, who suffered from schizo-
phrenia and needed medical attention. The defendant taxi driver refused
to assist the plaintiff into the taxi and refused the plaintiff’s request to
put her wheelchair in the boot of his taxi, either by himself or with some-
one’s assistance. The plaintiff managed to summons assistance from a
passerby who loaded the wheelchair into the boot of the taxi. On arrival
67 Perera v. Canada, ibid. at 351.
68 Bevis v. Burns (2006), 269 D.L.R. (4th) 696.
69 Above note 26 [Ma Bik Yung].
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338 Beyond Compensation: Apology as a Private Law Remedy
at their destination the defendant refused to assist the plaintiff to retrieve
her wheelchair and to help her out of the taxi, and again she had to obtain
the help of a passerby. There was evidence that the defendant had a med-
ical condition with his legs that made it “understandable and reasonable
for him to avoid lifting heavy weights,” though he did not mention his
disability to the plaintiff. During the taxi ride, and when it came to pay-
ing the fare, the driver made rude and derogatory remarks relating to the
plaintiff’s disability.
The District Court awarded the plaintiff $15,000 damages as a global
sum for injury to feelings with its aggravating features, and $5,000 puni-
tive damages for the “particularly oppressive and insulting circumstances”
that the defendant had subjected the plaintiff to, and ordered that “the
defendant deliver to the claimant an apology in writing through their re-
spective legal representatives within 14 days from the date for this order.”70
Section 72(4)(b) of the Ordinance provides that the District Court may “or-
der that the respondent shall perform any reasonable act or course of con-
duct to redress any loss or damage suffered by the claimant.”
The Court of Appeal dismissed an appeal against the trial judge’s find-
ing of harassment, but set aside the finding of discrimination on the basis
that the elements of discrimination had not been made out. The Court
reduced the award of damages to $10,000.71 The Court of Appeal also con-
cluded that ordering an unwilling apology is not within the scope of s.
72(4)(b) of the Ordinance and allowed the appeal by the defendant against
the order.72 The plaintiff appealed to the Final Court of Appeal, who pro-
ceeded on the basis that the defendant was neither contrite nor repentant.
The Final Court of Appeal identified the question of principle to be decided
as whether the District Court has the power to order an unwilling defend-
ant to give an apology. The phrase “unwilling defendant” was used by the
Court to mean a defendant who is not sorry, has no sense of regret, from
whom an apology would be insincere and an empty gesture, and who, in
the worst scenario, may go to the extreme of defying the order that would
then have to be enforced by contempt proceedings.73
70 The conduct of the defendant and his failure to apologize were found, in addition,
to justify ordering costs against the defendant: Ma Bik Yung v. Ko Chuen, [1999] 2
H.K.L.R.D. 263 at 279.
71 Ma Bik Yung v. Ko Chuen, [2000] 1 H.K.L.R.D. 514.
72 For comment and criticism of the appeal decision, see Carole Peterson, “The Failure
of the Hong Kong Court of Appeal to Recognize and Remedy Disability Discrimina-
tion” (2000) 30 Hong Kong L.J. 6 at 20–21.
73 Ma Bik Yung, above note 26 at 11.
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Robyn Carroll 339
The Final Court of Appeal determined that the District Court does
have the power to order an unwilling defendant to apologize. The Court
made three general observations about remedies under the Ordinance.
First, ss. 72(3) and 72(4) confer on the District Court the power to order
a wide range of remedies. Even aside from s. 72(4)(b), it was noted that
the remedies include mandatory orders that would be enforceable by con-
tempt proceedings.74 Second, when the court addresses the question of
remedies, the court would have already concluded that the defendant had
committed unlawful conduct under the Ordinance and it is to take a “global
approach” in fashioning the appropriate remedy. Third, a court must bear
in mind the legislative purpose of eliminating discrimination and the
prejudicial attitudes that may exist in society. In doing so, the court should
be prepared to be innovative, and at the same time flexible and pragmatic,
in its approach.75
In respect of s. 72(4)(b), the Court stated that the first step in con-
sidering what order should be made is to identify and assess the loss or
damage suffered by the plaintiff as a result of the unlawful conduct, which
in many cases will include injury to feelings. The next step is to iden-
tify whether there is any reasonable act or course of conduct that, judged
objectively, will redress the loss and damage, and whether the defendant
should be ordered to perform that act or course of conduct. Importantly,
the Court stated that it must be satisfied that the ordered act or course of
conduct will have the intended effect of redressing the loss or damage in
the circumstances of the case. The Court regarded an apology as “simply
to say sorry.” It defined an apology as “a regretful acknowledgement of a
wrong done” that can be made privately or publicly.76 In the Court’s view,
the making of an apology “will usually redress, at least to some extent, the
loss or damage, particularly injury to feelings” suffered by the plaintiff.77
74 For example, an order under s. 72(4)(c) that the defendant employ or re-employ the
plaintiff, and an order under s. 72(4)(d) that the defendant shall promote the plaintiff:
ibid. at 13–14.
75 Ibid. at 14.
76 This is an example of the apology paradox referred to in Part B, above. Simply saying
“sorry” does not always require acknowledgment of a wrong done; it depends entirely
on the circumstances. Sometimes “sorry” is offered as a courtesy for causing minor
harm or inconvenience where the words “excuse me” or “pardon me” would be apt.
In situations where serious harm has been caused, however, as in this case, the Court
is correct to refer to regret and acknowledgement as the core elements of an apology.
77 The Court also observed that an apology voluntarily made at an early stage, “for ex-
ample soon after the incident, during the conciliation process or before legal proceed-
ings,” will usually mitigate the plaintiff’s loss or damage: Ma Bik Yung, above note 26
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340 Beyond Compensation: Apology as a Private Law Remedy
Where a defendant contests liability but the court makes a finding of liabil-
ity, the Final Court of Appeal concluded that an apology may still have the
effect of redressing loss or damage, and so long as the making of the order
is reasonable, it is within the court’s power under s. 72(4)(b) to do so.78
The Court concluded that once a court considers that an apology would
be a reasonable act for the defendant to perform, it is entitled to proceed
on the assumption that, in the absence of any contrary indication, the de-
fendant will, after a finding of liability, be willing to apologize pursuant
to the order. That is, “the defendant will be willing to make an apology
which is sincere.”79 The Court drew support from Australian cases involv-
ing similar provisions to s. 72(4)(b), including De Simone,80 noting that in
each previous case where orders to apologize have been made it appears
to have been on the assumption that the defendant would be willing to
apologize pursuant to the order.81 The Court proposed that a provisional
order for an apology be made and opportunity provided to the parties to
make representations before the orders are made final. If the defendant
indicates that she is unwilling to apologize, the court should hear the par-
ties and consider submissions, including any arguments that final orders
would infringe on guaranteed rights and freedoms, before making any
final orders. If the result is that an order to apologize is not made, the
Court anticipates that there would usually be a substantial increase in the
quantum of damages.82
at 15. The Court further observed (ibid.): “[A]nd the earlier it is made, the stronger will
be its mitigating effect.” This reflects an objective view of the effect of apology, and
although it may not reflect the subjective experience of the plaintiff, it is consistent
with the approach taken to the mitigation of common law damages.
78 In making the order, the Court stated that it is desirable that the court should set
out the content of the apology in simple terms with appropriate directions, such as
whether it should be private or public, and directions concerning communication and
publication: ibid. at 15.
79 Ibid. at 15.
80 Above note 45.
81 In view of the arguments later raised in objection to the application for an apology or-
der in Falun Dafa, above note 46, it is submitted that there is no bright line between
“willing” and “unwilling,” and each case will require an assessment of merits and
likely effectiveness of the order. A court should, however, consider how unwilling a
particular defendant is to comply with an order and take that into account in settling
the procedure to be followed and order to be made.
82 Ma Bik Yung, above note 26 at 16. In the Court’s view, generally it will be prefer-
able not to indicate the amount of likely increase at this stage. It indicated that the
amount of increase should be determined after hearing argument. This will avoid the
undesirable perception that the defendant may buy his way out of making an apology.
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Robyn Carroll 341
The Final Court of Appeal identified a critical difference between the
authorities from Australia and the case before it. Does the District Court
have power to make an order to apologize against an unwilling defend-
ant? Two separate questions arise from this: first, whether the court has
power by s. 72(4)(b) to make an order against an unwilling defendant;
and, second, if it has the power, whether such an order would necessarily
infringe on the defendant’s rights and freedoms guaranteed under Hong
Kong law and, if so, whether the restrictions permitted by the law can ever
be justified. The answer to the second question has implications for the
first, because it was argued that the legislature could not have contem-
plated an order that would necessarily infringe on the guaranteed rights
and freedoms.
The Court therefore proceeded to address the second question of
whether an order for an apology against an unwilling defendant would
necessarily infringe on guaranteed rights and freedoms, which includes
the freedom of expression. It concluded that as infringement and the ap-
plication of the prescribed restrictions depends upon the circumstances
of each case, the defendant’s proposition that a restriction imposed by an
order to apologize can never be justified must be rejected. In reaching this
conclusion the Court followed the approach of courts in other jurisdictions
with similarly guaranteed rights and freedoms.83 In each case the circum-
stances must be considered, including the defendant’s reasons for his un-
willingness to apologize. Other circumstances include the nature and aim
of the legislation, the interest of the community, the gravity of the unlaw-
ful conduct, and the plaintiff’s circumstances, including the extent of the
loss and damage suffered. The Court concluded, therefore, that the order
would not necessarily infringe on guaranteed rights and freedoms.84
The Court then turned to the first question, which was whether the
court has the power to make an order for an apology against an unwilling
defendant. Aside from the argument that it would necessarily infringe on
the guaranteed rights and freedoms, the defendant also submitted that
the order could not have the effect of redressing any loss or damage suf-
fered by the defendant, and that it would be an unreasonable order for the
(While this reasoning may apply in the statutory context, it will not prevent this form
of “remedy bargaining” in the negotiation context. This is one of the concerns about
affording apology a “remedial” role, discussed in Part E.5, below).
83 Slaight Communications Inc v. Davidson, [1989] 1 S.C.R. 1038 (S.C.C.) [Slaight Com-
munications]; Perera v. Canada, above note 63; TV3 Network Ltd. v. Eveready New
Zealand Ltd., [1993] 3 N.Z.L.R. 435 (C.A.) [TV3 v. Eveready].
84 Ma Bik Yung, above note 26 at 20.
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342 Beyond Compensation: Apology as a Private Law Remedy
defendant to perform. Finally, the defendant argued that such an order
would always be futile or disproportionate and contrary to the interests of
the administration of justice. The Court rejected each of these arguments.
It concluded that with an unwilling defendant, “it may well be that an apol-
ogy, which will be an insincere one, would not usually be a reasonable act
for him to perform.” But, it held, there “may be rare cases where the court
could be satisfied that an apology, albeit insincere, would be a reasonable
act for the defendant to perform.”85
Even in the rare cases where the circumstances are exceptional, the
Court cautioned that great circumspection must be exercised, and an order
to apologize would not be made lightly against an unwilling defendant. A
court would need to consider other available and appropriate remedies, in-
cluding increased damages. The Court also contemplated an order under s.
72(4)(b), directing the defendant to publish a summary of the Court’s judg-
ment. This would only require the defendant to publish facts and informa-
tion, that is, a summary of what is contained in the judgment. This, the
Court rightly concluded, is different in kind from an order for an apology.
Having concluded that the court does have power under s. 72(4)(b)
to order an unwilling defendant to apologize, the Court decided that the
circumstances of the case before it was not one of the “rare cases with ex-
ceptional circumstances.”86 Unfortunately, and somewhat puzzlingly, no
account is given of the particular factors that the Court took into account
to reach that conclusion. The fact that the defendant was a natural person,
and that he had made known that he was unrepentant and remained un-
willing to comply with the order, even after liability was established, was
undoubtedly highly significant.
2) Orders to Apologize — Common Law Cases
The following cases establish that it is within the power of a court exercis-
ing equitable jurisdiction to order specific relief in the form of an apology
for common law wrongs. While some insight is provided into the factors
likely to be significant to an exercise of discretion, in none of the cases was
an order made.
85 Ibid. at 20.
86 The decision of the Final Court of Appeal has been followed in subsequent cases,
including: Chan Choi Yin v. Toppan Forms (Hong Kong) Ltd., 2006 WL 8186, [2006]
HKEC 415 (D.C.) (No. DCEO 6/2002); Siu Kai Yuen v. Maria College, [2005] 2
H.K.L.R.D. 775 (Equal Opportunities).
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Robyn Carroll 343
a) Breach of Contract
One would expect it to be a rare situation where a plaintiff would be seek-
ing to enforce a promise to apologize. It is not likely to form the basis of
an agreement, and, if it were, issues may still be raised about intention to
be legally bound. There are circumstances, however, in which a promise to
apologize can be a term of a contract. One would expect that damages for
breach would usually be the remedy sought by the plaintiff. The situation
may arise, however, where the plaintiff seeks to specifically enforce the
promise to apologize.
Summertime Holdings Pty Ltd. v. Environmental Defender’s Office Ltd.87
is such a case. The plaintiffs applied to the Court for a declaration that
the parties had reached agreement that an apology in an agreed form of
words would be made by the defendant’s employee and published in two
local newspapers and broadcast on Radio 2BL. The apology was sought in
respect of allegedly defamatory statements said by the plaintiffs to have
been made by the defendant about them in a radio broadcast by the Aus-
tralian Broadcasting Commission. The Court was required to decide, first,
whether an agreement between the plaintiffs and defendant existed, and,
secondly, whether the Court should grant an order “akin to specific per-
formance” requiring the defendant to publish the apology.
Justice Young concluded that the parties had settled the matter on the
basis that there would be an apology read on the air and printed in the
newspapers in a form that had been agreed, though they were amenable
to discussions to vary that agreement, including giving a deed of release to
reinforce what had been agreed.88 As to the second question, his Honour
stated:
A court hearing an action in defamation cannot order a defendant to give
an apology. All that the court can do is to order damages if it finds the
defendant liable, though it can take into account the fact that an apology
has been given when assessing the damages.89
Neither Judge nor counsel for the defendant was able to find any case
where the court exercising equitable jurisdiction had granted an injunc-
tion or made an order akin to specific performance to compel someone to
87 (1998), 45 N.S.W.L.R. 291 at 298 [Summertime Holdings].
88 Ibid. at 296. The finding that agreement had been made was significant, because any
rights in defamation that the plaintiffs otherwise might have had against the defend-
ants merged into the new contract.
89 Ibid.
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344 Beyond Compensation: Apology as a Private Law Remedy
say something in atonement of a defamatory statement.90 While acknow-
ledging that in some circumstances equity will order a person to make a
statement,91 Young J. considered that “it needs to be an exceptional case
before the courts should exercise their discretion to grant an order like
specific performance to compel a person to give an apology.”92 Despite
acknowledging that there would be no difficulty carrying out an order to
publish the apology in the agreed terms, and therefore that it was possible
for the Court to grant the order sought by the plaintiffs, his Honour con-
cluded that it was not appropriate to make the order. Essentially he relied
on two considerations in reaching his conclusion. First, he relied on the re-
luctance of the courts to grant an interim injunction to restrain continued
publication of an alleged defamation.93 As his Honour explained, this ap-
proach, and the concern “not to chill too readily the press and free speech,”
94 predates international and constitutional instruments that protect the
right to freedom of expression. Although courts of equity occasionally
grant an injunction in defamation cases, they are rare because, as a matter
of public policy, the court regards it as undesirable to prevent without due
cause the publication or expression of matters of fact or of opinion.95
Second, Young J. drew on the right to freedom of expression in Article
19 of the International Covenant on Civil and Political Rights to support his
decision not to make an order for specific performance of the agreement
to broadcast an apology. His Honour concluded:
I appreciate that in the instant case the form of the apology had, with slight
exception, been settled, and that the first three defendants were contrac-
tually obliged to give it, but it still seems to me that I should not, in the ab-
sence of some special reason, compel the defendants to utter the words.96
90 Ibid.
91 Ibid. at 297. See, for example, Guard Dog Patrol & Security Services Pty Ltd. v. Tiheti
Pty Ltd. (1990), 19 I.P.R. 259 at 263 (upon dissolution of the partnership, the court
ordered the partner in possession of the former business premises to put a recorded
message for callers on the telephone); Barrow v. Chappell & Co. Ltd., [1976] R.P.C. 355
(order that a musical work be published as a remedy for breach of an agreement to
publish the work).
92 Summertime Holdings, ibid. at 297.
93 Chappell v. TCN Channel 9 Pty Ltd. (1988), 14 N.S.W.L.R. 153; more recently, see ABC
v. O’Neill (2006), 227 C.L.R. 57.
94 Summertime Holdings, above note 87 at 297.
95 Ibid. at 297, citing Ian C.F. Spry, Principles of Equitable Remedies: Specific Performance,
Injunctions, Rectification and Equitable Damages, 5th ed. (Sydney: LBC Information
Services, 1997) at 326.
96 Summertime Holdings, ibid. at 297.
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Robyn Carroll 345
His Honour held that the plaintiffs were entitled to damages for the
failure to have the apology published as promised and awarded an amount
of $10,000.97 This amount represented “the value of the apology or the
lack of it.”98 To calculate this value, Young J. took into account the little
information that was available as to the surrounding circumstances of the
alleged defamation. His Honour approached the assessment on the basis
that there had been no attack on the plaintiffs’ character and assumed
that their reputation was “solid.”99 He did not find any aggravating factors
present that might have increased a jury verdict in a defamation case.
b) Torts
While apologies play an important role in the settlement of actions for def-
amation and other torts that aim to protect the plaintiff’s dignity and repu-
tation, there are a number of reasons why they are not the subject of final
orders. First, as noted by Young J. in Summertime Holdings, the apology
is not a common law remedy for defamation,100 nor, would it seem, is it a
common law remedy for any other tort. Second, where the loss resulting
from the tort has occurred in the past and is not ongoing, injunctive relief
will not be seen to serve any purpose that cannot be met by an award of
damages. What if there is a possibility of preventable future loss resulting
from the tort? What if a plaintiff seeks an apology as an alternative or addi-
tional remedy to damages? The following two cases address the question
of whether a court can grant injunctive relief that requires the defendant
to correct, retract, or apologize for a defamatory publication. In the first
case, from New Zealand, the plaintiffs sought an order for corrective ad-
vertising, not an apology. The second case, from Canada, concerns ordered
retraction and apology.
In TV3 Network Ltd. v. Eveready New Zealand Ltd,101 the New Zealand
Court of Appeal rejected the argument that it was beyond the court’s power
to order a mandatory injunction to broadcast corrective advertising in a
case of defamation and malicious falsehood. Justice Robertson in the High
Court allowed an appeal against a decision of the Master to strike out the
97 Although he noted that an order for costs would not have been made if this were a
common law claim, because the amount awarded was too low, Young J. ordered that
the defendants pay the plaintiff’s costs, as the claim for equitable relief was properly
brought: ibid. at 299.
98 Ibid. at 298.
99 Ibid.
100 Ibid. at 296.
101 Above note 83.
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346 Beyond Compensation: Apology as a Private Law Remedy
claim for the injunction and granted leave to appeal. All three members
of the Court of Appeal agreed that the court has jurisdiction to grant an
injunction requiring corrective advertising. They differed on the question
of whether the relief sought was clearly untenable. Cooke P. and Gault J.
concluded that it was not and dismissed the appeal.102 They accepted that
the jurisdiction was likely to be exercised in exceptional circumstances
only, but on their view of the pleadings the plaintiffs had an arguable case
and the exercise of jurisdiction could not be dismissed as unthinkable. Al-
though this case does not refer directly to the power to order a defendant
to apologize to a plaintiff, the reasoning of Robertson J. and all members
of the Court of Appeal, and the authorities relied upon by their Honours,
support the conclusion that a court exercising equitable jurisdiction has the
power to order a defendant to apologize by way of a mandatory injunction.
The second case, Moore v. Canadian Newspapers Co. Ltd.,103 concerned
an appeal against a decision of the provincial court ordering an apology
as a form of equitable relief for libel. The provincial court found in favour
of the plaintiff against the Globe and Mail newspaper, and in addition to
ordering the payment of damages it ordered the defendant to publish a
retraction and an apology. The defendant appealed the publication order
on two grounds: first, that the provincial court lacked jurisdiction to order
equitable relief; and, second, that the order violated its freedom of expres-
sion as guaranteed by s. 2(b) of the Charter. Justice Rosenberg allowed
the appeal on the first ground. Although it was therefore not necessary
to consider the Charter argument, his Honour regarded the question as
deserving of consideration. He concluded that an apology order for libel
was potentially a valid form of relief that would withstand a Charter chal-
lenge on the same basis and reasoning as in Slaight Communications v.
Davidson.104
In Slaight Communications, the Supreme Court of Canada held that
the court can make an order that interferes with a defendant’s freedom
of expression when it can be shown to be demonstrably justified in a free
and democratic society. In that case the Court upheld an order made by the
adjudicator of an unfair dismissal claim. The order required the employer
to give an employee a letter of recommendation setting out, among other
102 Justice McKay dissented on this point, finding that the relief sought was untenable
given the weight of authorities against ordering correction as a remedy for defama-
tion: ibid. at 452.
103 (1989), 69 O.R. (2d) 262 [Moore v. Canadian Newspapers].
104 Above note 83.
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Robyn Carroll 347
things, the sales quota he had been set and the amount of sales he had
actually made, and the fact that he had been unjustly dismissed. Further,
it was ordered that the employer be prohibited from answering a request
for information about the employee except by sending that letter of recom-
mendation. The objective of the order in Slaight Communications was to
counteract the effects of the employee’s unjust dismissal by enhancing his
ability to seek new employment without untrue statements being made
by his previous employer. In Moore v. Canadian Newspapers, Rosenberg J.
concluded that the same reasoning could be applied in the case before him
as in Slaight Communications, namely, that there was an “unequal balance
between the plaintiff in this case and the Globe and Mail and the fact that
the ordered apology is rationally linked to the objective of attempting to
undo the harm caused by the libel.”105
In both TV3 v. Eveready and Moore v. Canadian Newspapers, while the
Courts each concluded that the orders would interfere with the defendant’s
right to freedom of expression as conferred by the New Zealand Bill of Rights
Act, 1990 and the Charter, respectively, depending on the circumstances
the orders could be justified as a reasonable limit on that freedom.
3) Summary: The Remedial Nature of an Order to Apologize
The following is an analysis of some key points that emerge from the cases
in which an apology has been considered or ordered under statute, or con-
templated as an equitable remedy.
a) The Purpose of an Order to Apologize Is to “Redress” the Wrong
Damages are regularly awarded to compensate for unlawful discrimina-
tion. The apology has also been identified as an appropriate order in some
circumstances to “redress” non-pecuniary loss and damage. Little guid-
ance is provided in the cases as to how an ordered apology achieves this
remedial purpose. In De Simone, McDonald J. referred to “redressing the
loss, damage and injury” as part of the “compensatory remedy” to be af-
forded to the plaintiff. The Hong Kong Court of Appeal in Ma Bik Yung
spoke of the order as one to “redress” the loss or damage, particularly in-
jury to feelings. There is no suggestion in the judgment of the Final Court
of Appeal that it considered the purpose of the order to be limited to com-
105 Moore v. Canadian Newspapers, above note 103.
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348 Beyond Compensation: Apology as a Private Law Remedy
pensation. In Falun Dafa, Bowman J. described the order to apologize as
“non-monetary” and “non-compensatory.”106
There is an important difference that is not explained by the wording
of the legislation in the views expressed in De Simone and Falun Dafa as to
the purpose of the order to apologize. In De Simone the order to apologize is
characterized as a compensatory remedy. In Falun Dafa it is characterized
as serving a purpose distinct from compensatory damages. It is submitted
that the better view is that an order to apologize serves both compensatory
and non-compensatory purposes. To the extent that the apology serves to
reduce the mental distress caused by the wrongdoing and restore feelings
of self-respect and dignity, it functions in a similar way to damages for
mental distress and loss of dignity. To this extent the apology can be re-
garded as “compensatory.”107 There are obvious difficulties in transposing
106 Above note 46 at para. 28.
107 Vines has expressed a similar view of apology as having some compensation func-
tion in the context of tort law and civil liability legislation. While stating that “an
apology does not look as if it could meet any compensatory function,” she suggests
that it might be argued to “remediate” the sense of dignity of the plaintiff. However,
she regards this as “an inadequate characterization of a process that really turns on
the acknowledgment of a wrong,” and concludes that it is preferable, therefore, “to
consider apologies in the context of corrective justice”; see Vines, “Apologising to
Avoid Liability,” above note 15 at 499–500. Vines has subsequently elaborated on this
view. Damages, she explains, is seen as the central vehicle of corrective justice in that
it operate to redress the balance between the parties by correcting the loss suffered
by one party at the expense of the other who caused it. “Apologies can be part of this
corrective justice mix if one considers compensation as practical reparation and
apology as reparation for the emotional and moral pain suffered by the victim”; see
Prue Vines, “The Power of Apology: Mercy, Forgiveness or Corrective Justice in the
Civil Liability Arena?” (2007) 1 Public Space: The Journal of Law and Social Justice
1 at 21 [Vines, “The Power of Apology”]. Gill apparently takes a different view of the
corrective nature of apologies. While agreeing that apologies, like compensation, aim
at the restoration of the victim, she expresses the view that “compensation seems ne-
cessarily to involve the giving of something that offsets losses suffered by the victim.
The apology is not a thing; it is an act that displays a certain set of beliefs, attitudes,
etc., experienced by the offender. More importantly, an apology is not a mechanism
for offsetting losses. The apology does not compensate for loss; it is instead a way to
acknowledge the value of what was lost”; see Kathleen Gill, “The Moral Functions of
an Apology” (2000) 31 Philosophical Forum 11 at 16. Gill makes this comment in the
context of arguing that the apology should not be used as a substitute for compensa-
tion or as part of an attempt to avoid compensating victims (ibid. at 23). While this
is indeed a danger to be avoided, the comments might still be said to overstate the
extent to which compensatory damages are only about offsetting losses and therefore
a basis on which to distinguish the aims of compensation and apologies.
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Robyn Carroll 349
the legal notion of “compensation” onto a social interaction in the form
of a speech act the functions of which are still not fully understood. An
apology comes after harm: it cannot undo the loss or harm caused, nor
can it return the parties to their pre-harm position.108 At best, it can work
to repair the harm109 and assist in the healing process by reducing the
ongoing hurt, suffering, or indignation caused by the harm. In this way it
serves to lessen the hurt and to console, in a similar way to damages for
non-pecuniary loss.110 Of course, if “compensation” for loss or damage is
understood to refer exclusively to a monetary award of damages, an order
to apologize cannot be described as “compensation.” This is apparently the
view taken by the Court in Falun Dafa. It is submitted that it is unneces-
sarily restrictive to confine the compensatory function to monetary awards
of damages and to construe an apology order as non-compensatory. At the
same time, to the extent that the apology order is declaratory of the fact
that the plaintiff has been the subject of unlawful discrimination and it is
intended to educate the wider community on equal opportunity, it clearly
goes beyond compensation of the plaintiff.
The argument was raised in Falun Dafa by the defendant that to order
an apology where no monetary injury, loss, or damage had been sustained
would be an order in the nature of punitive damages and would not be
authorized. In rejecting this view, Bowman J. stated that, while it may be
inappropriate to make an order to apologize given the humiliation and em-
barrassment that would result, it would still not be punitive in nature.111
b) A Statutory Order to Apologize Can Promote Public Policy as well as
Protecting the Plaintiff’s Interests
It is submitted that the remedial aims of equal opportunity legislation in-
clude compensation in the broad sense of redressing injury to feelings
108 An analogy can be drawn with the purpose of awarding non-pecuniary damages for
personal injuries that “must surely be based upon solace for a condition created not
upon payment for something taken away”: Skelton v. Collins (1966), 115 C.L.R. 94 at 130,
Windeyer J., with whom Luntz agrees; see Harald Luntz, “The Purposes of Damages in
Tort Law” in Paul D. Finn, ed., Essays on Torts (Sydney: Law Book Co., 1989) at 262.
109 Lazare, above note 25 at 44. See text below at Part D.2.
110 For example, in defamation non-pecuniary compensatory damages have been de-
scribed as operating “in two ways — as a vindication of the plaintiff to the public and
as consolation to him for a wrong done. Compensation here is a solatium rather than
a monetary recompense for harm measurable in money”; see Uren v. John Fairfax,
above note 10 at 150, Windeyer J.
111 Above note 46 at paras. 29–30. This is consistent with the view taken by the Court in
Slaight Communications, above note 83.
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350 Beyond Compensation: Apology as a Private Law Remedy
and dignity in ways other than by an award of damages. In any event, it is
clear that the remedial aims extend beyond compensation. One purpose
of the order in each of the cases discussed above was to make clear that the
defendant, not the plaintiff, was in the wrong. Publication of the order is
intended to notify a wider group of people of the defendant’s wrongdoing
and at the same time educate the wider community as to what is unlawful
conduct. The orders made under the equal opportunity legislation play a
role “in ensuring a society free from discrimination, harassment and racial
vilification” and serve an educative purpose.112 A further example of these
broader aims is provided by Western Aboriginal Legal Service Ltd. v. Jones &
Anor.113 In that case, the complainant, Western Aboriginal Legal Service
Ltd., alleged that both the first respondent, Mr. Jones, and the second re-
spondent, Radio 2UE Sydney Pty Ltd., breached the racial vilification pro-
visions (Division 3A, Part 2) of the Anti-Discrimination Act, 1997 (the Act)
in a broadcast on radio station 2UE on 28 November 1995. The complain-
ant sent a letter to the President of the Anti-Discrimination Board, and
the then Equal Opportunity Tribunal held an inquiry into the allegations.
Both of the respondents were ordered to publish an apology on 2UE, and
Jones was further ordered to send a letter of apology to the complainant.
The Tribunal held that it was not necessary to liability that the defendant
intend racial vilification to result from their conduct. It concluded that an
apology was appropriate to redress any lingering impact of the conduct, as
well as having an educative effect.
c) An Order to Apologize Requires a Balancing of Rights and Freedoms
The protection of statutorily conferred rights, for example the right to free-
dom from unlawful discrimination, can in some circumstances justify
interference with other rights, including the right to freedom of expres-
sion. For example, in Slaight Communications,114 Dickson C.J. stated in re-
lation to a remedy for unfair dismissal that, “[w]hile an order of additional
monetary compensation would clearly be less intrusive upon the appel-
lant’s freedom of expression, it would not be an acceptable substitute.”115
Similarly, equal opportunity legislation in Australia has been held to justify
orders that interfere with a defendant’s freedom of speech. In Wagga Wag-
112 Evans v. National Crime Authority (2003), E.O.C. 93-298 at para. 115 [Evans v. National
Crime Authority], Raphael F.M.: “These cases are not just about the recovery of dam-
ages. They serve an educational purpose.”
113 Above note 41.
114 Above note 83.
115 Ibid. at 1054.
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Robyn Carroll 351
ga Aboriginal Action Group v. Eldridge,116 the plaintiffs successfully brought
a claim of racial vilification under s. 20C of the Anti-Discrimination Act,
1977 (N.S.W.). The Equal Opportunity Tribunal rejected the respondent’s
argument that s. 20C is invalid on the basis that it derogates from the
right to free speech. In rejecting free speech as a defence under s. 20C, the
Tribunal concluded that racial vilification legislation is drafted to avoid the
likelihood of interference with freedom of expression and it recognized
that the right to free expression “has never been an absolute or unequivo-
cal right.”117
The recognition of rights and freedoms other than freedom of expres-
sion in a charter or bill of rights will also be relevant to the weight to be
given to the freedom of speech in actions based on common law wrongs,
and may result in the plaintiff ’s rights being given a higher value than
the defendant’s. In TV3 v. Eveready, for example, Cooke P. considered it “a
tenable view that, if the plaintiffs establish malicious falsehood or unlaw-
ful defamation, the [New Zealand Bill of Rights Act, 1990] might provide a
basis for an order that corrective information be broadcast to the viewing
public.”118 As we have seen above, a similar view was expressed by Rosen-
berg J. in Moore v. Canadian Newspapers of the potential for the Charter
to protect against an infringement of the common law right not to be de-
famed by means of an apology order.119
Where a wrong has been committed against the plaintiff that does not
constitute an infringement of a statutory or constitutional right, a court
exercising equitable jurisdiction will be reluctant to grant a remedy that
interferes with the defendant’s freedom of expression, as seen in Sum-
mertime Holdings.120 This will be a significant factor against an exercise of
discretion to order an apology. In each case, however, it will be necessary
to look to the nature of the right supported by the remedy and other dis-
cretionary considerations.121
116 (1995), E.O.C. 92-701.
117 In contrast, the constitutionally guaranteed freedom of speech under the First
Amendment to the United States Constitution largely precludes the availability of the
apology as a civil remedy or a remedy for unlawful discrimination. For discussion, see
White, above note 16 at 1298–300.
118 TV3 v. Eveready, above note 83 at 441.
119 See Part C.2(b), below.
120 Justice Hammond cites free speech as a good example of where the defendant’s inter-
est is routinely given a higher value than the plaintiff’s interest; see Butler v. Country-
wide Finance, [1993] 3 N.Z.L.R. 623 at 633.
121 Ibid. at 632–33.
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352 Beyond Compensation: Apology as a Private Law Remedy
D. REASONS WHY THE LAW MIGHT WANT TO ORDER AN APOLOGY
AS A REMEDY
The cases discussed in the previous part support the conclusion that one
remedial purpose of an order to apologize in equal opportunity cases is
compensation. In this way, it is submitted, the order protects at least one
interest that is the same as an award of non-pecuniary damages. The argu-
ments made in that context that an ordered apology serves both compen-
satory and non-compensatory purposes also apply to common law and
statutory actions that aim to protect the dignitary interest. There is support
for the view that the law regards the apology as having a compensatory
purpose in the common law. Apologies are relevant to the assessment of
damages for torts that protect the plaintiff’s dignitary interests, in particu-
lar defamation, trespass, false imprisonment, and deprivation of liberty.
In assessing aggravated damages, which are awarded to compensate the
plaintiff for additional hurt or insult, the judge or jury can take into ac-
count the conduct and motives of the defendant where they aggravate the
injury to the plaintiff. This can include an effective apology,122 a refusal to
apologize when requested, lateness of an apology, and the unsatisfactory
nature of an offered apology.123 This indicates that an apology offered at the
time of or after the wrongdoing is seen to serve a compensatory function
in law and, if absent, late, or unsatisfactory, necessitates a higher award of
damages. Similarly, as an apology can serve to redress the harm resulting
from the wrong, it will be appropriate to reduce the amount of damages
payable where it is shown to have had that effect.
The apology has also been identified as a mitigating factor in defama-
tion, false imprisonment, and malicious prosecution cases.124 In defam-
122 See Broome v. Cassell & Co. Ltd. (No. 1), [1972] A.C. 1027 at 1071, Lord Hailsham L.C.
[Broome v. Cassell]; Fielding v. Variety Incorporated, [1967] 2 Q.B. 841 at 851, Denning
L.J. [Fielding]; also Peterson v. Advertiser Newspapers Ltd. (1995), 64 S.A.S.R. 152.
123 See Randwick Labor Club Ltd. v. Amalgamated Television Services Pty Ltd., [2000]
NSWSC 906. See also Berryman, “Reconceptualizing Aggravated Damages,” above
note 7 at 1549–50, who concludes that the ideal of “complete compensation” includes
dignitary damages, and noting that the mitigating effect of apologies may assume a
greater role in achieving complete compensation.
124 Tilbury explains that the word “mitigation” is generally used in a peculiar sense in
these actions. Whereas mitigation generally takes account of the extent to which the
plaintiff’s losses have been reduced or increased by steps taken by the plaintiff after
the tort was committed, it is used in these cases to describe any factors “that tend to
show that the plaintiff’s loss is less than, at first blush, it appears to be”; see Michael
Tilbury, Civil Remedies (Sydney: Butterworths, 1990) vol. 2 at para. 11027. In this
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Robyn Carroll 353
ation proceedings, an apology offered by the defendant to the plaintiff,
though not available as a complete defence to the action, can, depending
on its adequacy, be admitted as evidence in mitigation and reduce the over-
all damages awarded to the plaintiff.125 To the extent that the apology is
regarded as reducing the hurt and indignity suffered by the plaintiff as a
result of the publication of the defamatory matter, it can be understood as
compensatory in nature.
This part draws on equal opportunity cases and a wider range of other
considerations to suggest a number of reasons that support the apology
as a remedy. A number of these extend beyond meeting the interests of
the individual plaintiff. It is an underlying premise of this essay that it is
a legitimate function of the law to take into account the broader social and
justice implications of granting a remedy in determining which remedy
will be granted.
1) Plaintiff Choice of Remedy
The issue of plaintiff choice attracts both principled and pragmatic re-
sponses. On the one hand, it is recognized that a plaintiff should have
the remedy of her choice.126 In a common law action this will involve the
choice of specific relief in the form of a mandatory injunction, or for the
specific performance of a promise to apologize, as in Summertime Holdings.
The notion of choice at best recognizes that a plaintiff can elect the cause
of action on which they rely and the remedy they prefer. It is not for the
defendant to say what cause of action or remedy the plaintiff must seek. It
is in this connection that the English Court of Appeal in Joyce v. Sengupta127
spoke of a plaintiff being entitled to take “full advantage of the various
remedies English law provides for the wrong of which he complains.”128
Referring to that statement, Cooke P. (as he then was) in TV3 v. Eveready
context, the apology is conduct of the defendant, not the plaintiff, that can mitigate
the plaintiff’s loss. One curious result of this approach is that the damages awarded
to the plaintiff where an apology has been offered or published may be reduced even
where the plaintiff does not accept the apology or consider it inadequate.
125 Lemaire v. Smiths Newspapers Ltd. (1927), 28 S.R. (N.S.W.) 161 at 165–66.
126 Much debate has surrounded this question in the context of specific performance of
contracts. For an overview, see Donald Clark, “Rethinking the Role of Specific Relief
in the Contractual Setting” in Jeffrey Berryman, ed., Remedies: Issues and Perspectives
(Scarborough: Carswell, 1991) at 139.
127 [1993] 1 All E.R. 897.
128 Ibid. at 902, Sir Donald Nicholls V.-C.
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354 Beyond Compensation: Apology as a Private Law Remedy
concluded: “By parity of reasoning the plaintiffs cannot be compelled to
confine their action to monetary claims if some other form of relief, such
as injunction, is properly claimable.”129 On the other hand, the “right” to
choose does not confer a right to an order for specific relief, as the court
may ultimately determine in the exercise of its discretion that the relief
sought is inappropriate in the circumstances.
2) An Apology Can Address the Psychological Needs of the Parties
Victims of wrongdoing are known to try to reduce or eliminate the feeling
of being violated, and they can do this, for example, by executing revenge,
achieving a sense of justice (for example, through litigation), using psych-
ological defences such as denial or projection, or by forgiveness.130 Allan
explains that many psychologists consider that forgiving is the best way to
recover from the wrong. He reviews the psychological research on apology
and forgiving, and concludes that an apology can facilitate the process of
forgiving in a number of ways, both cognitive and behavioural.131
Lazare proposes that successful apologies heal and lead to forgiveness
because they satisfy at least one, and sometimes several, distinct psycho-
logical needs of the offended party.132 While not all of the psychological
needs identified by Lazare will be met by an apology that is ordered by a
court at the conclusion of contested legal proceedings, his analysis sup-
ports the view that there will be benefits to a plaintiff if at least some of
their psychological needs are met.133 The psychological needs that might
be met by an ordered apology are, as identified by Lazare: (1) “restoration
of self respect and dignity”; (2) “an assurance that the offenses were not
their fault”; (3) “seeing the offender suffer”; and (4) “reparation for the
harm caused by the offense”.134 Each of these, with the possible exception
129 Above note 83 at 438.
130 Allan, above note 28 at 9, citing E. Worthington & N. Wade, “The Psychology of Un-
forgiveness and Forgiveness and Implications for Clinical Practice” (1999) 18 Journal
of Social and Clinical Psychology 385.
131 Ibid. Allan concludes, at 10, that it “is therefore likely that an apology through its role
in the forgiving process may influence the behaviour of victims.”
132 Lazare, above note 25 at 44. The other psychological needs that Lazare identifies as
capable of being met by an apology are: assurance that both parties have shared val-
ues; assurance of safety in their relationship; and having meaningful dialogues with
the offenders.
133 Note that while in c. 3 of his work Lazare analyzes how apologies heal, he does not
apply his analysis to court-ordered apologies.
134 Lazare, above note 25 at 44.
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Robyn Carroll 355
of (3), is consistent with the purposes of orders to apologize identified in
the previous part of this essay.135
The most obvious evidence that apologies have value is that plain-
tiffs seek them. It is a common term of settlement of equal opportun-
ity complaints,136 and apology orders are made not infrequently in that
jurisdiction.137 There is an abundance of anecdotal evidence as to the im-
portance of apologies from lawyers and others involved in the litigation
process and the settlement of legal disputes.138 The introduction of apol-
ogy legislation as a way of encouraging defendants to apologize recognizes
the importance to plaintiffs of receiving apologies where they have been
injured or suffered some form of loss or damage.139 Not surprisingly, there
is no data on the demand for the apology as a common law remedy, though
it is a well-known term of settlement of defamation actions. The rise in
demand for processes that provide greater therapeutic benefits to the par-
ties underscores the desire for outcomes beyond conventional judicial
remedies.140 There is a growing body of literature that shows that lawyers,
negotiators, and mediators are familiar with the role that apologies play in
the settlement of disputes in mediation.141
There is a potential therapeutic role for the law in creating opportun-
ities for forgiveness to occur. There is no research directly on the effect on
135 While seeing the defendant “suffer” is not itself a purpose of civil remedies, awards
of exemplary damages recognize the potential for the remedy to assuage any urge for
revenge felt by victims or for engendering self-help likely to endanger the peace; see
Lamb v. Cotogno (1987), 164 C.L.R. 1 [Lamb v. Cotogno].
136 Not surprisingly, where apology orders are available, an agreement to apologize often
becomes a term of a conciliated agreement. See Rocky Clifford, A Review of Outcomes
of Complaints under the Sex Discrimination Act, 1984 (19 November 2002) online:
www.hreoc.gov.au/complaints_information/publications/sda_ outcomes.html; Rose-
mary Hunter & Alice Leonard, “The Outcomes of Conciliation in Sex Discrimination
Cases” (Working Paper No. 8, Centre for Employment and Labour Relations Law, Au-
gust 1995). Hunter and Leonard, in their study of three Australian jurisdictions, found
that apologies were a term of settlement in 30.5 percent of the conciliated complaints.
137 CCH Australia, above note 44 at para. 89-950.
138 See Shuman, above note 1; Jennifer Brown, “The Role of Apology in Negotiation”
(2003–2004) 87 Marq. L. Rev. 665; Bruce Neckers, “The Art of the Apology” (2002)
81 Mich. B.J. 10.
139 There would appear to be multiple purposes behind the legislation, some therapeutic
and others directed at reducing litigation. See Cohen, “Legislating Apology,” above
note 15; Vines, “Apologising to Avoid Liability,” above note 15.
140 Des Rosiers, Feldthusen, & Hankivsky, above note 20.
141 Cohen, “Advising Clients to Apologize,” above note 34; Brown, above note 138; Deb-
orah Levi, “The Role of Apology in Mediation” (1997) 72 N.Y.U.L. Rev. 1165.
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356 Beyond Compensation: Apology as a Private Law Remedy
a plaintiff receiving an ordered apology in civil cases, so we can only specu-
late on this potential and whether forgiveness is a possible outcome. As
remorse or repentance of an offender is not a prerequisite for forgiving to
take place,142 it can be argued that there is scope for an ordered apology to
assist a plaintiff to forgive at the conclusion of the litigation process even
when the apology they receive is not given voluntarily. This is not to sug-
gest that forgiveness is a function of the law. Neither is it a function of the
law to restore relations between the parties and achieve reconciliation. The
law can and should, however, be mindful of the potential psychological
and social outcomes of its rules and decisions.143
There is also evidence that suggests that defendants may benefit from
being ordered to apologize. Petrucci, for example, identifies a number of
studies and concludes that “there is strong evidence that apology has a
place of importance in the criminal justice process from the perspective
of victims and offenders.”144 One can speculate that defendants in civil
disputes might, in some circumstances, benefit psychologically from be-
ing ordered to apologize.145 One scenario will be where a defendant has
received legal advice not to admit liability but wants to acknowledge that
they were at fault and apologize to the plaintiff if the court finds against
them. There may even be some element of face-saving by a defendant who
wants to apologize but in the circumstances, for example at the end of a
long and bitter court proceeding, is unable to reconcile her wish with her
need to stand by her defence of the proceedings.
3) In Some Circumstances an Order to Apologize Will Redress the
Plaintiff’s Loss or Damage Better than an Award of Damages
The following arguments support the apology as a remedy in claims be-
yond those arising under equal opportunity law. In some cases a plaintiff
142 Allan, above note 28 at 9, citing Robert Enright, Suzanne Freedman, & Julio Rique,
“The Psychology of Interpersonal Forgiveness” in Robert Enright & Joanna North,
eds., Exploring Forgiveness (Madison: University of Wisconsin University Press, 1998)
at 46.
143 This view is representative of a large body of jurisprudence, law and psychology, and
therapeutic jurisprudence, encompassed more broadly within what Daicoff refers to
as “comprehensive law”; see Susan Daicoff, “Law as a Healing Profession: The ‘Com-
prehensive Law Movement’” (2006) 6 Pepp. Disp. Resol. L.J. 1.
144 Petrucci, above note 30 at 355.
145 A further benefit of an order is that it might counteract advice received by the defend-
ant’s lawyer not to offer an apology; see Latif, above note 34 at 319–20.
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Robyn Carroll 357
might seek only an order to apologize; in others, additional orders might
be sought relating to publication and dissemination of the apology. Al-
ternatively, a plaintiff might seek both damages and an apology. In the
latter situation, attention would be needed to ensure that there was no
“double recovery” for non-pecuniary losses.
a) Overcoming the Difficulty of Assessing Non-pecuniary Loss
The difficulty of assigning a monetary value to mental distress and loss of
dignity is well known. In Broome v. Cassell & Co. Ltd.,146 for example, Lord
Hailsham L.C. refers to the difficulty of assessing the subjective element of
damage suffered in many torts.147 Actions for defamation and other actions
where damages for loss of reputation are involved have a highly subjective
element.148 When damages are at large, as they are for torts that protect
dignitary interests, they present “a most baffling problem . . . . They are
truly, as it is said, at large.”149 An order to apologize presents one possible
way to overcome the difficulty of measuring the harm to the plaintiff’s in-
tangible dignitary interest.150 In Summertime Holdings, the plaintiff argued
in support of its claim for enforcement of the promise to apologize that
it would be “virtually impossible” to compute the damages for failing to
perform a promise to apologize.151 Not surprisingly their argument did not
succeed, as the courts do not resile from the task of assessing damages
notwithstanding their uncertain and subjective nature. It is submitted that
while the difficulty-of-calculation argument might be raised to support a
claim that an apology is an appropriate remedy, it will not justify an apol-
ogy order on its own.
b) An Order to Apologize or Other Forms of Mandatory Order or Specific
Relief May Protect a Plaintiff’s Interests More Completely than a
Monetary Award
There is potential for an apology and other coercive orders to redress more
completely the loss caused by the wrong. First, as seen above, it may meet
146 Above note 122.
147 Ibid. at 1070.
148 Ibid. at 1071.
149 Fielding, above note 122 at 852, Harman L.J.
150 This proposal is likely to be met with the same argument that was made against
awarding a non-compensatory conventional sum in Rees v. Darlington, above note 8
at para. 46, Lord Steyn — that it is for Parliament, not judges, to create such a novel
remedy.
151 Above note 87 at 298.
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358 Beyond Compensation: Apology as a Private Law Remedy
a plaintiff’s psychological needs more fully than an award of damages,
protect their dignitary interests, and restore a social equilibrium between
the parties. Second, the order may also better reflect societal values as to
how the wrong is to be remedied. For example, in Slaight Communications
the issue related to the appropriate remedy for unjust dismissal. Although
the relief sought did not include an apology, the comment of Dickson C.J.
is pertinent. He stated: “Monetary compensation can only be an alterna-
tive measure if labour is treated as a commodity and every day without
work seen as being exhaustively reducible to some pecuniary value.”152
Third, an apology order may more fully protect the subjective interest of
the plaintiff to receive an acknowledgment of wrongdoing. In the excep-
tional case where the loss is caused by a breach of promise to apologize, as
in Summertime Holdings, it can be argued that specific relief will more fully
protect the plaintiff’s performance interest.153 Fourth, there is potential to
more effectively prevent future economic loss or damage resulting from
the wrong than by a damages award. In Slaight Communications,154 for ex-
ample, the risk of ongoing harm from unfair dismissal was addressed by
orders relating to future communications between the defendant employer
and the plaintiff’s potential future employers. In another case the defend-
ant was found to have discriminated against the plaintiff in breach of the
Equal Opportunity Act, 1984 (W.A.) through the conduct of an employee.
The plaintiff was undertaking a practicum with the defendant education
department as part of her university teacher education requirements. The
defendant was ordered to provide a written letter of apology to the plaintiff
and to send a copy of the Tribunal’s reasons and the letter of apology to
the university at which the plaintiff was enrolled, with a request that the
university place the letter and reasons on the plaintiff’s academic file held
by the university.155 In this case there was no order as to damages, as the
plaintiff was not found to have incurred any pecuniary loss. The orders
relating to the apology here were, it is suggested, aimed at ensuring that
the plaintiff would not be disadvantaged in her studies for not completing
the practicum.
152 Slaight Communications, above note 83 at 1054.
153 While this inevitably invites consideration of how and why the plaintiff should be en-
titled to expect that the promise made to him will be performed, and of the appropri-
ate remedy where it has not, that is beyond the scope of this essay.
154 Slaight Communications, above note 83.
155 Chew, above note 51.
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Robyn Carroll 359
c) An Order to Apologize Can Signify that a Wrong Has Been Committed
Against the Plaintiff in Circumstances Where No Monetary Relief Is
Awarded
This can arise because no pecuniary loss has been caused by the wrong,
or because monetary compensation for non-pecuniary loss is not sought156
or is not considered necessary in addition to the apology.157 It is assumed
that in each case the plaintiff will satisfy a statutory or common law re-
quirement to show either that she has suffered some loss or damage from
the wrong, or that the wrong is actionable per se. For example, in Falun
Dafa, loss or injury resulting from unlawful discrimination had to be
established, even though no monetary damages were sought. Once en-
titlement to relief is established, a range of remedial possibilities exist. A
declaration and an award of nominal damages are available in appropriate
circumstances to signify that a wrong has been committed by the defend-
ant against the plaintiff. These remedies may be appropriate where no loss
or injury is claimed or proven. Similarly, if the remedial aim is simply to
inform members of the public of the outcome of proceedings, this can be
achieved by a different order, for example, an order requiring the defend-
ant to publish a summary of the judgment. As noted by the Final Court
of Appeal in Ma Bik Yung, that type of order is different in kind from an
order for an apology. This and other cases in which orders to apologize
have been made or contemplated support the conclusion that an apology
order can signify that a wrong has been committed but serve purposes
other than being declaratory of the plaintiff’s rights, informing the public,
and providing compensation.
4) An Apology Order Can Achieve Purposes Beyond Compensating the
Plaintiff
The law of civil wrongs is often said to have two functions.158 One is to com-
pensate individuals for loss resulting from infringement of their rights.159
The other, “more powerfully normative,” function emphasizes its “exhorta-
156 See Falun Dafa, above note 46.
157 See Koorda v. Black and White Distribution Pty Ltd., [2006] WASAT 75.
158 See Peter Birks in Peter Birks, ed., Wrongs and Remedies in the Twenty-First Century
(Oxford: Clarendon Press, 1996) at vi; Tony Honoré, “The Morality of Tort Law” in
David G. Owen, ed., Philosophical Foundations of Tort Law (Oxford: Clarendon Press,
1995) at 75; Dugdale & Jones, above note 8 at para. 1-10.
159 This function is generally understood as a welfare function, aligning compensation
with social security; see Birks, ibid.
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360 Beyond Compensation: Apology as a Private Law Remedy
tory and retributive function.”160 From this normative standpoint, the law
of wrongs, both civil and criminal, forms a single social project for deter-
ring disapproved conduct and avenging its victims.161 Much of the debate
concerning these functions has centered on the role of damages, particu-
larly exemplary damages, and whether the latter have a legitimate role in
civil law other than to compensate for loss. This debate will not be revisited
here, but the possibility will be raised that the apology might go some way
to meet some of the purposes ascribed to an award of exemplary damages.
The view has been advanced above that an ordered apology can serve a
compensatory purpose. Does it serve other objectives of the civil law? This
essay suggests that it does, though there is considerably more work to be
done to locate this coercive remedy within the framework of the law of civil
wrongs. Commentators on the legislation that limits evidence of apolo-
gies being used to prove civil liability draw attention to the law’s ability to
achieve goals beyond compensation of individual plaintiffs. Orenstein, for
example, draws on feminist insights to advocate for a rule of evidence that
protects apologies, based on the effect of apologies “on relationships and
the hierarchical reordering that transpires when regret and forgiveness
are exchanged.”162 Vines also acknowledges that apologies have multiple
functions within society: corrective justice, mediating relationships, and
achieving reconciliation or healing through a process of apology, forgive-
ness, and redemption.163
A small number of commentators have directed their arguments
specifically to ordered apologies. They present a range of social, psycho-
logical, and justice arguments in support of ordered apologies. White, for
example, proposes that civil-rights plaintiffs pursuing governmental de-
fendants should be entitled to receive court-ordered apologies as an equit-
able remedy.164 Using a discrimination case similar in many respects to
the Falun Dafa case but which was ultimately settled, he demonstrates
how traditional forms of compensation fail to provide adequate relief to
civil-rights victims in the United States. White argues that court-ordered
apologies are an effective means of healing psychological wounds, reinfor-
160 Ibid.
161 Ibid. Birks laments the extent to which the “illusory hegemony of compensation” has
made it difficult for remedies for civil wrongs to satisfy the need to “condemn and
avenge the outrage”: ibid. at viii.
162 Aviva Orenstein, “Apology Expected: Incorporating a Feminist Analysis into Evidence
Policy Where You Would Least Expect It” (1999) 28 Sw. U.L. Rev. 221 at 279.
163 Vines, “The Power of Apology,” above note 107.
164 White, above note 16.
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Robyn Carroll 361
cing norms, restoring social equilibrium, promoting social change, and
compelling governmental reform.165 More broadly, Latif argues that court-
ordered apologies have a role to play in the resolution of civil and criminal
legal disputes. Their merit, she argues, is that they can serve to mitigate a
victim’s anger, shame and educate an offender, or be an antidote to a law-
yer advising against apology.166 Latif does not focus directly on how these
benefits apply to civil disputes. What follows is an overview of the remedial
purposes that might be served by an ordered apology. The analysis is con-
fined to private law disputes, though similar issues arise in choosing the
appropriate remedy for breach of a dignitary interest arising under statute
or constitutional or quasi-constitutional statutes.167
a) Punishment and Deterrence
Notwithstanding doubts expressed about the appropriateness of punish-
ment other than for criminal justice purposes, it continues to play a role
in the civil law. Where available, an award of exemplary damages aims
to punish the defendant for showing through her conduct “conscious
wrongdoing in contumelious disregard of another’s rights”168 and to deter
her from further wrongdoing.169 The award also aims to deter other like-
minded persons more generally from engaging in conduct of the same
reprehensible kind, and to appease the victim.170 The award of exemplary
damages is intended therefore to fulfil retributive, vindicatory, deterrent,
and exhortatory functions by imposing a penalty and making an example
of the defendant.
Research and commentary in the criminal justice setting suggests that
the apology has an important role to play in the criminal justice system by
reducing the anger of victims and reducing the punishment of offenders.171
165 Ibid. at 1265 and 1271–86.
166 Latif, above note 34 at 311–15. Her conclusion is largely based on criminal cases, as
there is very limited scope in the United States for orders to apologize as a remedy for
civil disputes, including unlawful discrimination.
167 See the essay in this book by Grant Hammond, “Beyond Dignity” (c. 6).
168 Whitfeld v. De Lauret & Co. Ltd. (1920), 29 C.L.R. 71 at 77, Knox C.J.
169 See, for example, XL Petroleum (NSW) Pty Ltd. v. Caltex Oil (Australia) Pty Ltd. (1985),
155 C.L.R. 448 at 471, Brennan J., where he quotes Lord Diplock in Broome v. Cassell,
above note 122 at 1130, as saying that the social purpose to be served by an award of
exemplary damages is “to teach a wrong-doer that tort does not pay.”
170 Lamb v. Cotogno, above note 135 at 9.
171 Bruce Darby & Berry Schlenker, “Children’s Reactions to Apologies” (1982) 43 Journal
of Personality and Social Psychology 742; Bernard Weiner et al., “Public Confession
and Forgiveness” (1991) 59 Journal of Personality 281.
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362 Beyond Compensation: Apology as a Private Law Remedy
Petrucci demonstrates that restorative justice, therapeutic jurisprudence,
and shame and integration theory all share several key concepts that are
crucial to apology.172 It is not, however, suggested in the literature that the
apology has a role to play as punishment so as to serve a retributive pur-
pose. In the same way, it is submitted that the apology is not a proper
means to achieve any retributive purpose in the civil law.173
The question then arises as to whether an order to apologize can
achieve similar exhortatory and deterrent functions to an award of exem-
plary damages without imposing a pecuniary penalty on the defendant. A
tentative comment to this effect is made by Robbennolt and others, who
speculate that “if civil decision makers were allowed to compel an apology
as part of their verdict, they might choose to do so as a better way by which
to restore equity”174 between the parties. This suggests that there might be
merit in exploring the potential for apology orders to mark the disapproval
by the civil decision-maker of the defendant’s conduct without using an
award of exemplary damages.
b) Appeasement
An award of exemplary damages is also said to serve the purpose of ap-
peasement, distinct from compensating for injury to feelings or loss of
dignity.175 The aim of appeasement is to “assuage any urge for revenge felt
172 Petrucci, above note 30.
173 This is not to say that the defendant, in making an apology, may not suffer humilia-
tion and the plaintiff may not take satisfaction from seeing this. The humiliation that
accompanies the ritual of apology may be the substance of the satisfaction that the
wronged party achieves from an unfelt apology (Miller, above note 37 at 88), and meet
their need to feel that the score is even; see White, above note 16 at 1278.
174 Jennifer Robbennolt, John Darley, & Robert MacCoun, “Symbolism and Incommen-
surability in Civil Sanctioning: Decision Makers as Goal Managers” (2003) 68 Brook.
L. Rev. 1121 at 1147. As an example to support this view, at fn. 114, the authors give
a case in which a jury asked the defendant to “offer a formal written apology” to the
plaintiff; reported in Richard Monastersky, “Former History Professor Wins $5.3 Mil-
lion Verdict Against Fairleigh Dickinson,” The Chronicle of Higher Education, 21 May
2001. Robbennolt et al. note that “[w]hile the payment of money by the defendant to
the plaintiff may sometimes serve the expressive purpose of reestablishing respect for
the victim of wrongdoing, it may not always be the only or the most satisfactory path-
way for accomplishing this goal”: ibid. at 1144. Their reference to “restoring equity”
between the parties is supported by equity theorists who have suggested an offer of
apology as a possible means to restore a relationship between parties (citing Elaine
Walster, Ellen Berscheid, & G. William Walster, “New Directions in Equity Research”
(1973) 25 Journal of Personality and Social Psychology 151).
175 Lamb v. Cotogno, above note 135 at 10.
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Robyn Carroll 363
by victims and to discourage any temptation to engage in self-help likely to
endanger the peace.”176 The underlying purpose of the award of damages
is to maintain peace and order, and to encourage victims of wrongdoing to
seek relief from the courts rather than take the law into their own hands.
It also acknowledges that victims of wrongdoing have needs, other than
for monetary compensation, that can be met by judicial remedies.177 The
extent to which an order to apologize will assuage any urge for revenge is
closely linked to the extent to which a victim feels vindicated by the out-
come of legal proceedings.
c) Vindication
According to the Australian Oxford Dictionary, to vindicate is to:
1. clear of blame or suspicion;
2. establish the existence, merit, or justice of (one’s courage, conduct,
assertion, etc.);
3. justify (a person, oneself, etc.) by evidence or argument.178
Although “vindicate” has application in a number of settings, it is often
used in a legal context at various times in each of these ways. What is not
clear is whether the word is used to refer to the purpose of the remedy that
is awarded or its effect.179 In any event, it is clear that vindication itself is
not a common law remedy. In a broad sense all judicially determined cases
176 Ibid. at 9.
177 The psychological literature supports the conclusion that seeing the defendant “suf-
fer” will serve to appease the plaintiff in a similar way to an award of exemplary dam-
ages. See Lazare, above note 25 at 44.
178 The Australian Oxford Dictionary, online: < www.oxfordreference.com/views/ENTRY.
html?entry+t157.e61185&srn+1&ssi>. A more extensive definition is provided by the
Oxford English Dictionary Online to include “to avenge or revenge” and “to pun-
ish”; see The Oxford English Dictionary Online, online at: <dictionary.oed.com/cgi/
entry/50277719?single=1&query_type=word&queryword=vindicate &first=1&max_to_
show=10>. To some extent, these multiple meanings account for the blurring we see
in the role that damages perform to compensate, punish, and vindicate. See Michael
Tilbury, “Factors Inflating Damages Awards” in Paul Finn, ed., Essays on Damages
(Sydney: Law Book Co., 1992) at 86 [Tilbury, “Factors Inflating Damages”]. It is not
suggested in this essay that an apology should be ordered to serve a vindictive pur-
pose in the sense of punishment.
179 This question will not be pursued here, other than to note two recent articles in
which the vindication of rights is referred to as a distinct purpose of an award of dam-
ages; see Rt. Hon. Lord Scott of Foscote, “Damages” [2007] 4 L.M.C.L.Q. 465; David
Pearce & Roger Halson, “Damages for Breach of Contract: Compensation, Restitution
and Vindication” (2008) 28 Oxford J. Legal Stud. 73.
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364 Beyond Compensation: Apology as a Private Law Remedy
vindicate the position taken in legal proceedings by the successful party,
and all civil remedies vindicate the plaintiff’s private law rights. Where
legal rights have been infringed but the plaintiff has suffered no pecuniary
loss or compensable non-pecuniary loss, a declaration or an award of nom-
inal damages will vindicate his rights. Where the wrongdoing has harmed
the reputation of the plaintiff, an award of damages aims to restore that
reputation in the eyes of others and in this way vindicates the plaintiff’s
reputation. Where a plaintiff is awarded compensatory damages for injury
to feelings or for loss of dignity, the award might be described as vindicat-
ing, or validating, the plaintiff’s experience of those emotions, but it will
only vindicate the plaintiff’s right to non-interference with their dignitary
interest where the non-pecuniary loss is recoverable without the need to
specifically prove loss or as an independent head of damages.
The equal opportunity cases referred to in Part C of this essay illus-
trate the ways in which an ordered apology can vindicate both the plain-
tiff’s rights and her emotional response to the wrongdoing. First, as an
order in the plaintiff’s favour, it vindicates her action in bringing the case
against the defendant.180 Although orders made in any legal action will
vindicate a plaintiff in this sense, this will be a significant aim of an apol-
ogy order in a case where no damages are awarded and only an order of
apology is sought.181
Second, an order to apologize can vindicate the plaintiff in the eyes of
others. In De Simone, MacDonald J. stated:
Insofar as the Board in its reasons for decision expressed the view that it
was felt appropriate that the respondent feel that she had been vindicated
to the employees of the company, I am of opinion that what it expressed
was that by the appellants publishing an apology that would to some ex-
tent go towards compensating her for the stigmatisation that she had
felt while she was employed by the company after and as a result of the
events that occurred.182
It is clear that the Court here regards vindication as serving a compen-
satory purpose, which is consistent with the legislative requirement that
orders are to redress “loss or damage or injury.”183 The loss of reputation
180 As recognized, for example, in Ma Bik Yung, above note 26 at 24, Bokhary P.J.
181 As in Falun Dafa, above note 46, for example.
182 Above note 45 at 77 and 361.
183 Section 46(2)(c) of the Equal Opportunity Act, 1984 (N.S.W.) provided that the Board,
in proceedings such as this, “may order the respondent to perform any acts specified
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Robyn Carroll 365
resulting from the wrongful conduct in a case like this will be lessened,
it is assumed, by restoring the reputation of the plaintiff through a pub-
lished apology. In this way an apology order can be said not only to com-
pensate the plaintiff but also to vindicate their right not to be unlawfully
discriminated against.
One of the ways that an apology can meet the psychological needs of an
injured party is by assuring that party that he was not at fault. An apology
may restore or validate his belief that he did not bring the harm he has suf-
fered upon himself.184 It follows that a third way an order to apologize can
vindicate the plaintiff is by vindicating his belief by requiring the defend-
ant to acknowledge, on the record, that she, not the plaintiff, wrongfully
caused the harm suffered by the plaintiff. 185 An apology will also vindicate
the plaintiff’s belief that he is due an apology from the defendant and af-
firm the value he places on receiving one. In these ways an apology order
can meet psychological needs that are important to the plaintiff’s recovery,
whose needs will not be met by an award of compensatory damages.186
d) Normative Functions Other than Deterring Wrongdoing
Aside from the remedial benefits to an individual plaintiff, there are
broader purposes that can be served by an order to apologize. The cases
discussed in Part C of this essay refer to the ability of an apology order
to reinforce substantive rights conferred on a plaintiff by legislation or
the common law, and to educate members of the community about what
constitutes unlawful conduct in society. An apology order might also serve
to address systematic imbalances within society, for example, by ensuring
that a defendant in a position of power publicly acknowledges her wrong-
doing and undertakes to take steps to avoid further harm from the conduct
in the order with a view to redressing any loss or damage or injury suffered by the
person who made the complaint as a result of the act of discrimination.”
184 “By explaining to the victim that he or she did not cause what happened (i.e., attribut-
ing responsibility for the harm externally rather than internally), apology, like fault
based liability determinations, may serve as a moral gyroscope clarifying responsibil-
ity for harm. The apology tells the victim, ‘It wasn’t your fault,’ avoiding misconstrued
self-blame or criticism”: Shuman, above note 1 at 183.
185 White, above note 16 at 1278; Lazare, above note 25 at 68.
186 Robbennolt, Darley, & MacCoun, above note 174 at 1147. The authors there state
that “while offering an apology may not be the best mechanism by which to achieve
compensation, it may be a better mechanism by which to express the proper relative
moral positions of the party than is a monetary award.”
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366 Beyond Compensation: Apology as a Private Law Remedy
for which she has apologized.187 In each instance, the apology assists in the
protection of legal rights at a societal level.
In this way the exhortatory function of legal judgments shows mem-
bers of society what is acceptable and unacceptable conduct. Legal rem-
edies reinforce this by indicating what sanctions follow unacceptable
conduct. This expressive function of law is both instrumental, aiming to
alter future social behaviour, and symbolic of social and economic justice,
among other goals.188 An order to apologize has potential to fulfill its ex-
pressive function in two ways: first, as a judicial remedy, by confirming
what conduct is wrongful;189 and, second, by stating that an apology is re-
garded by the court, not just the plaintiff, as the appropriate civil response
in the circumstances. In doing so, an ordered apology sends a “signal to
the offender, the victim and the community that the victim is a valued and
defended member of the community that cannot be treated in a fashion
that diminishes her worth.”190
As a symbolic expression of what speech act should follow wrongdoing,
an order to apologize serves a remedial purpose that is not performed by
an award of damages. It can also avoid some of the danger of overworking
compensation as the response to wrongdoing and of signalling that there
is no moral obligation to apologize if compensation is paid.
In short, due to their high expressive utility, apologies — both voluntary
and forced — offer a powerful alternative to commodified compensation,
and can be an effective means of sending messages about acceptable be-
haviour and desired social norms.191
187 This was apparently the intention in Slaight Communications, above note 83, although
that case did not involve an ordered apology.
188 Robbennolt, Darley, & MacCoun, above note 174 at 1121.
189 Gill, speaking of apologies in the criminal justice setting in sentencing and parole de-
cision making, notes that the practice of having offenders publicly express apologies
helps to maintain a general attitude of respect for the law: “[T]he legitimacy of the
law is reaffirmed as those who violate it acknowledge that they were wrong”; see Gill,
above note 107 at 17. As Gill cautions, however, there are moral dangers of expressing
apologies in the absence of genuine remorse, and of using coercion to elicit apolo-
gies from another as a way of establishing dominance over them. In each case it will
require an assessment of the relative benefits and harm of using the coercive force of
the court in this way.
190 Robbennolt, Darley, & MacCoun, above note 174 at 1147.
191 White, above note 16 at 1279. In reaching this conclusion, White draws on the work
of a number of scholars who regard apologies as educative and affirming of societal
norms. These include: Janet Holmes, “Sex Differences and Apologies: One Aspect of
Communicative Competence” (1989) 10 Applied Linguistics 194 at 200; Robbennolt,
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Robyn Carroll 367
In support of having to say sorry as a response to serious wrongs and
wrongful losses, Marshall argues that “the apology keeps in the picture the
moral significance of the relation between the wrongdoer and the victim;
it symbolizes the restoration of the moral equilibrium that should hold
between moral agents.”192 The symbolic function of an ordered apology is
represented by the ritual involved in offering the apology rather than by
the state of mind of the person offering the apology. From this philosoph-
ical perspective Marshall posits that because “the words or actions which
constitute our practice of apologizing are often symbolic,” they “do not
require to be accompanied by particular mental states to carry meaning.”193
This is consistent with the view advanced in Part B of this essay that a lack
of sincerity and remorse, while significantly reducing the moral content
and likelihood of an apology being accepted, does not render it valueless.194
The same view is expressed by Robbennolt, Darley, and MacCoun:
To the extent that the transgressor’s wrongful conduct has conveyed the
message that the offender considers the victim to be beneath her, an apol-
ogy, voluntary or compelled, serves as a degradation ceremony that re-
stores equal footing between victim and offender. If the apology involves
a public expression of remorse, it may address the loss of face that the
victim has suffered in front of the witnessing community. Moreover, the
victim may see an apology that is enforced by a judgmental body, even if
insincere, as a community statement that the victim is not to be treated
as less valuable than others.195
Darley, & MacCoun, above note 174 at 1147; Stephanos Bibas & Richard Bierschbach,
“Integrating Remorse and Apology into Criminal Procedure” (2004) 114 Yale L.J. 85 at
113; and Dan Kahan & Eric Posner, “Shaming White-Collar Criminals: A Proposal for
Reform of the Federal Sentencing Guidelines” (1999) 42 J.L. & Econ. 365 at 365. See
also Stephen Garvey, “Can Shaming Punishments Educate?” (1998) 65 U. Chicago L.
Rev. 733.
192 Sandra Marshall, “Non-Compensable Wrongs, or Having to Say You’re Sorry” in Mat-
thew Kramer, ed., Rights, Wrongs and Responsibilities (New York: Palgrave, 2001) at 220.
193 Ibid. at 221–22.
194 Miller expresses this by saying that “faking” is a part of a real apology. “It is a big
part of how we teach apology to the young.” He goes on: “We will never properly
understand apology rituals and their requirement of humiliation and compensation
if we do not understand that the ritual form is largely necessitated by how easy it is
to fake remorse, and by how hard it is to distinguish genuine remorse that arises as
a moral response to the harm done to the other from equally genuine amoral regret
that arises from the discomfort the whole fiasco is causing to the wrongdoer”: Miller,
above note 37 at 94.
195 Robbennolt, Darley, & MacCoun, above note 174 at 1147.
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368 Beyond Compensation: Apology as a Private Law Remedy
Marshall responds to concerns about the coercive nature of an ordered
apology in two ways. First, she argues that the symbolic nature of apology
remains intact whatever the defendant may be thinking, and therefore a
public apology given in the law symbolizes the recognition of wrongdoing,
acceptance of responsibility, and that an apology is owed to the plaintiff
“without coercing thought.”196 Second, she argues that coercion is some-
times justified as a rational pressure “in order to get people to appreci-
ate the wrong they have done” and may be no more of a problem than
being required to do anything else by the law.197 The symbolic function
described by Marshall is presumably achieved through the expression by
the defendant, rather than the court, of words that recognize and accept
responsibility. In this way an ordered apology is both symbolic (the ritual)
and exhortatory (the order).
Therefore, the ordered apology can serve to educate the community
and reinforce social and moral norms of accepting responsibility, recogniz-
ing when one is in the wrong, and expressing regret for the harm caused.
In this respect, for purposes of its own, the law draws the moral and psych-
ological functions of apology into the legal system. For example, as Vines
points out, apology legislation in the context of legal liability for negligence
is intended to influence litigation and settlement behaviour, not just to ex-
press the apology as a civil norm.198 The ability of law to achieve moral and
psychological functions by legislatively encouraging — and in some instan-
ces, ordering — apologies is undeniably limited, but this should not deter
efforts in this regard. Ultimately, as Vines argues in the context of apology
legislation: “Whether we ultimately call something ‘moral’ or ‘legal’ does
not matter. What we are seeking is behaviour from individuals and com-
munities which ultimately reduces aggression and conflict . . .”199
The capacity of the law to serve the normative function of valuing and
reinforcing the apology as a civilized social act will depend on many fac-
tors. Many of these will be identified in the following parts of this essay. As
an expressive and symbolic gesture, an ordered apology is more likely to
196 Marshall, above note 192 at 222.
197 Ibid.
198 Vines, “The Power of Apology,” above note 107 at 39.
199 Ibid. at 43. Vines is particularly concerned about the distortion of the meaning of
apology where protection is only offered if an apology does not include an acknow-
ledgement of fault, which is inconsistent with any moral view of apology. While this
“gap” is not of such concern with ordered apologies, as the whole point is usually to
acknowledge wrongdoing and responsibility, lack of sincerity and remorse is a con-
cern that runs through both protected and coerced apologies.
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Robyn Carroll 369
be of value where the wording of the apology is agreed on between the par-
ties, and the defendant is willing to comply with the terms of the order.
E. CONCERNS SURROUNDING THE APOLOGY AS A REMEDY
In the previous Part a number of arguments were advanced in support of
the ordered apology as a remedy. This Part draws on case law and com-
mentary to provide an overview of the many issues and concerns likely
to be raised against orders to apologize. Some of the issues apply gener-
ally to the exercise of discretion to award equitable relief for common law
wrongs.200 Others relate specifically to apologies. Valuable insight is pro-
vided by the commentary concerning apology legislation, as a number of
the same concerns have been raised in that context.
1) The Remedies “Hierarchy”
Common law jurisdictions have a marked preference for money remedies
in the form of compensatory damages, with equitable remedies ranking
second and declaratory relief a distant third.201 Hammond has described
the remedial hierarchy, which places damages at the top of the hierarchy,
as the single biggest constraint on a more responsive system of judicial
remedies.202 He concludes that the hierarchy “is dissolving,” and as it does
courts are required to make context-specific evaluations as to which rem-
edy is the most appropriate in a given case.203 Tilbury submits that the
law has reached a stage where it is no longer appropriate to speak of a
hierarchical structure of remedies. In his view, the differences between
legal and equitable remedies that flow from the discretionary nature of
equitable relief are much exaggerated.204 As Tilbury argues, regardless of
200 The following considerations focus broadly on what Tilbury refers to as result-based
discretions — discretions relating to the administration of justice and general policy
considerations — rather than conduct-based discretions. See Michael Tilbury, Civil
Remedies (Sydney: Butterworths, 1990) vol 1. at paras. 6028–47 [Tilbury, Civil Rem-
edies Volume I].
201 Grant Hammond, “Rethinking Remedies: The Changing Conception of the Relation-
ship between Legal and Equitable Remedies” in Berryman, above note 126 at 94
[Hammond, “Rethinking Remedies”]. See also Grant Hammond, “The Place of Dam-
ages in the Scheme of Remedies” in Finn, above note 178 at 192 [Hammond, “Place
of Damages”].
202 Hammond, “Rethinking Remedies,” ibid.
203 Ibid.
204 Tilbury, Civil Remedies Volume I, above note 200 at para. 1025.
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370 Beyond Compensation: Apology as a Private Law Remedy
whether a hierarchy exists or not, there may be little practical difference, as
where the choice rests primarily with the plaintiff, and even where specific
relief possesses theoretical primacy, plaintiffs have a general preference
for substitutionary relief. Whether expressed as a hierarchy or remedial
preference, there is little doubt for the reasons that follow that an ordered
apology will be an exceptional remedy.
2) Floodgates, Subjectivity, and Inflated-Claim Arguments
These arguments are often made to explain the courts’ reluctance to ex-
pand the circumstances in which damages are available for mental dis-
tress and disappointment, particularly for breach of contract. In tort there
are concerns about exaggeration and fabrication of non-pecuniary loss, dif-
ficulties of quantifying the loss, and the proliferation of claims that unduly
burden defendants.205 In Baltic Shipping Co. v. Dillon,206 Mason C.J. refers
to the policy basis for the general rule that non-pecuniary damages are not
recoverable for breach of contract as the “instinctive fear of the common
law judges that to allow damages for disappointment or distress conse-
quent upon breach of an ordinary contract would be to inflate damages
awards in contract cases.”207 Although it is arguable that an order to apolo-
gize can overcome some of these concerns — in particular, the difficulty of
valuing non-pecuniary loss — it can nevertheless be argued that there are
serious dangers of “tokenism” and “cheapening the currency” of apologies
if such orders are made routinely and in a wide range of circumstances.
3) Freedom of Expression
An order to apologize interferes with the defendant’s freedom of expres-
sion. As Young J. said in Summertime Holdings, while there is no absolute
or guaranteed freedom of expression at common law, it would need to be
an “exceptional” case before a court would compel a defendant to give an
apology. Given the approach taken in that case, it is difficult to see what
would be exceptional, other than the defendant indicating that he is will-
ing to submit to an order to apologize or agreeing to an order by consent.
A court exercising equitable jurisdiction clearly has the power to order an
apology and could do so if it was persuaded that an exercise of discretion
205 See Giliker, above note 6 at 22.
206 (1993), 176 C.L.R. 344 [Baltic Shipping Co. v. Dillon].
207 Ibid. at 397.
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Robyn Carroll 371
to that effect was justified in all the circumstances. A plaintiff will need to
demonstrate that protection of his rights or interests justifies compelling a
defendant to apologize notwithstanding the importance placed by the com-
mon law on freedom of expression. It is more likely, however, that in the
absence of legislation that allows for justifiable interference with the de-
fendant’s freedom of expression, protection of common law rights in tort
and for breach of contract by an apology order will remain exceptional.208
In any case, a number of factors will be significant to an exercise of
discretion, including the wording and form of the ordered apology. A court
may be more likely to order publication of a written statement than to
order the defendant to speak the words of apology. The wording of the
order will be another significant factor, particularly if it purports to order
the expression of sentiments or beliefs not actually held by the defend-
ant. A further factor that could be considered by the court is whether the
defendant is a natural person or a corporate or government entity. Argu-
ably, a stronger case can be made against an order that interferes with the
freedom of speech and, ultimately, the personal liberty of a natural person
than where the defendant is a corporate or government entity.209
4) The Arguments for Damages as Opposed to an Apology Order
a) Damages are the Most Appropriate Remedy for Civil Wrongs
Many of these arguments are linked to other concerns identified in this
Part. The interference with a defendant’s freedom of speech inherent in an
order to apologize can also be presented as an argument in favour of dam-
ages. Other arguments can be made. If the primary aim of the common
law is to compensate for loss or injury resulting from wrongs, and dam-
ages are regarded as synonymous with compensation, it might be argued
that there is no scope for a remedy that seeks to compensate by any other
208 Examples of where interference with a constitutionally guaranteed freedom of expres-
sion has been justified are provided in Part C.3(c) of this essay. The enactment of
bills of rights in Australian States and Territories may have some significance in this
regard, for example, Human Rights Act, 2004 (A.C.T.) and Charter of Human Rights
and Responsibilities Act, 2006 (Vic.).
209 This does not overlook the fact that a corporate or governmental entity will still carry
out the court’s order through the actions of a natural person. White notes this fact
in advocating court-ordered apologies as a civil rights remedy in the United States.
White also confines his proposal to governmental defendants on the basis that First
Amendment (freedom of speech and the right not to speak) arguments do not arise
in compelling state actors to apologize; see White, above note 16 at 1298–299.
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372 Beyond Compensation: Apology as a Private Law Remedy
means. One response to this is that notwithstanding the historical and jur-
idical connection between damages and the compensation goal, the law is
capable of making other orders with a compensatory purpose, as illustrat-
ed by the equal opportunity cases discussed above. Whether it is open to
common law courts to develop an alternative compensatory remedy in this
way, as opposed to exercising the power to order an apology under statute,
is another matter. Factors that will assist this line of inquiry are that dam-
ages awarded for common law wrongs already serve purposes other than
compensation, and that the remedy of apology has been recognized in civil
law and ecclesiastical law.210
Another line of argument might be described as a status quo argu-
ment. Courts routinely award damages for injury to feelings and loss of
dignity, and although this may not achieve perfect compensation, it has
developed over time in preference to a range of other orders that interfere
far more with the defendant’s personal liberty and freedom of expression.
Additionally, compensatory damages as the primary common law rem-
edy mark out civil obligations as distinct from the criminal law, which is
responsible for punishment as a means of maintaining social order. This
line of argument, while supported both by practicality and principle, is in
danger of overstating the retributive function of criminal law211 and the
distance between the functions of criminal and civil law.
b) Finality
A money order has the benefit of finality, as opposed to orders that may
require further intervention by the court. An order to publish an apology,
210 The apology performed a demonstrative purpose in ecclesiastical law; see Tilbury,
“Factors Inflating Damages,” above note 178 at 96, fn. 86, where he cites Henry
C. Coote, The Practice of the Ecclesiastical Courts (London: H. Butterworth, 1847) at
272–73 (“Schedule of Penance”), for an example of such an order, and notes his
indebtedness to Professor Waddams for this reference. The apology has also existed
as a remedy in Roman and Roman-Dutch civil law and could be invoked to redress an
infringement of a person’s dignity or reputation. There is still scope for this remedy
under the new South African Constitution. See Brooks, above note 180 at 258, fn. 170
to c. 4, in which he cites and gratefully acknowledges his sources.
211 Reparative justice also plays an important part in the criminal justice system. See
Lucia Zedner, “Reparation and Retribution: Are They Reconcilable?” (1994) 57 M.L.R.
228 at 231, who refers to the origins of Anglo-Saxon law, when little distinction was
made between public and private wrongs. In more recently developed restorative jus-
tice processes, the apology plays an important role in resolving the dispute between
offender and victim and provides insight into the potential for achieving a similar
purpose in civil law.
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Robyn Carroll 373
or take other steps to disseminate the apology, increases the chance of
disagreements arising that may require further negotiation and possibly
court intervention. In practical terms, however, these difficulties can be
avoided by clarity and certainty in the wording of the order.
c) Ongoing Supervision
The courts avoid orders the terms of which require ongoing supervision.212
Whether this will be necessary in any particular case will depend on the
precise nature of the order and what action needs to be taken.213 Where
the wording is settled by the court and the precise manner of publication
or any other action is stipulated, supervision and enforcement pose no
greater difficulty than in many other instances where coercive orders are
made. The Court made it clear that this was not an obstacle on the facts
to what would effectively have been an order to apologize in Summertime
Holdings.214
d) Severe consequences of Non-compliance with a Coercive Order
Non-compliance with a coercive order may result in fines or imprisonment
of the defendant for contempt.215 There is likely to be great reluctance to
grant an injunction that will place a defendant in the position where she
will face proceedings for contempt of court where the order involves co-
erced speech and will not prevent threatened or apprehended harm. Key
factors to be considered by a court will be whether the case involves a will-
ing or unwilling defendant, whether the defendant is a natural person,
and the possibility that she will face imprisonment as opposed to a fine or
some other order that does not impinge upon her personal liberty.
e) “Encouragement” rather than Coercion
It might be argued that there are less coercive, and therefore preferable,
ways to encourage defendants to apologize. In Summertime Holdings, for
212 J.C. Williamson Ltd. v. Lukey and Mulholland (1931), 45 C.L.R. 282.
213 Co-operative Insurance Society Ltd. v. Argyll Stores (Holdings) Ltd., [1998] A.C. 1.
214 Above note 87 at 298.
215 Australasian Meat Industry Employees’ Union v. Mudginberri Station Pty Ltd. (1986), 161
C.L.R. 98 at 109–15; Witham v. Holloway (1995), 183 C.L.R. 525. Contempt proceed-
ings are also applicable to decisions made under equal opportunity legislation; see
State Administrative Tribunal Act, 2004 (W.A.), s. 100; (contempt to be dealt with as if
it were contempt of the Supreme Court); see also Victorian Civil and Administrative
Tribunal Act, 1998 (Vic.), s. 122 (providing for enforcement of an order of the Tribunal
as if it were an order of the Supreme Court). While this eventuality is a factor to be
considered, it has not deterred courts from making apology orders in this jurisdiction.
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374 Beyond Compensation: Apology as a Private Law Remedy
example, Young J. suspended for seven days after the reasons were handed
down the verdict that $10,000 be paid to the plaintiff. If within those seven
days the plaintiffs and defendants agreed that suitable apologies be pub-
lished and the deeds of released previously proposed by the parties were
exchanged, the order would be vacated. In a different setting where no
similar financial consequences were brought to bear, a Federal Magistrate
refused to order an apology in an equal opportunity case but employed
moral signposting, stating: “I am sure that those now in charge at the [Na-
tional Crime Authority] will understand this, will reflect upon it and at the
appropriate time make Ms. Evans the apology that I believe she deserves to
receive.”216 In each of these instances the court seeks to achieve indirectly
what the plaintiff has sought as a remedy. One is left to speculate whether
in either instance the plaintiff received the apology they sought.
5) Insincerity and Futility
It is widely accepted that sincerity is a key element of a meaningful apol-
ogy. For many plaintiffs the absence of volition and sincerity will render
an apology valueless. This belief is reflected both in academic literature
and in the cases. For example, in a case where an employer was found to
have unlawfully discriminated against an employee as a single parent, the
Court stated:
The applicant has asked for an apology. At the end of the hearing I ex-
pressed a view which I have expressed previously in these matters. I do
not believe there is much utility in forcing someone to apologise. An
apology is intended to come from the heart. It cannot be forced out of a
person. If the person does not wish to give it then it is valueless.217
It is argued by some commentators that apology legislation encour-
ages defendants to offer incomplete, insincere, and, as a result, ineffective
apologies that fall short of being full expressions of remorse necessary to
promote reconciliation.218 Preventing an apology offered by a defendant
from being admitted in evidence by a plaintiff to establish liability is said
to eliminate the moral content and risk inherent in offering the apology.219
The concern that the law “encourages” insincere apologies assumes even
216 Evans v. National Crime Authority, above note 112.
217 Ibid. at para. 115, Raphael F.M.
218 Taft, “Apology Subverted,” above note 33; Tavuchis, above note 25.
219 Taft, “On Bended Knee,” above note 33.
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Robyn Carroll 375
greater force when the apology is an ordered one. The order might be de-
scribed as futile if the apology lacks sincerity. There are, however, a num-
ber of reasons why this conclusion is not necessarily warranted. First, the
view that an insincere apology is worthless involves a value judgment and
overlooks the reality that for some plaintiffs any apology, albeit insincere,
will have more value than no apology all.220 Second, as discussed in the
previous Part, an ordered apology may achieve other legal and social pur-
poses even in the absence of sincerity. Third, an apology given pursuant to
an order will not necessarily be insincere, as the defendant may be willing
for the order to be made following a finding of liability.
6) The Concern that an Apology Order will Under-Compensate the
Plaintiff
There are concerns that defendants, acting on the advice of their lawyers,
will take advantage of privileged settlement negotiations and only apolo-
gize in a bid to reduce the amount of compensation payable.221 There are
fears that victims will be “duped” by these insincere and callous apolo-
gies, resulting in under-compensation.222 One can expect that the same
potential arises in settlement negotiations involving legal actions where
the apology is available as a remedy. There are studies that indicate that
people tend to accept even unconvincing apologies.223 As some people are
more likely to accept apologies than others, the risk of manipulation will
be variable.224 Possible explanations for accepting insincere apologies in-
clude the social pressure to forgive, and forgiving because it is embarrass-
ing not to once the wrongdoer has given an apology.225 While there is a
legitimate basis for the concern that plaintiffs will be under-compensated,
two comments can be made. First, as to the fear that a plaintiff will be
“duped” by the defendant’s apology, this discounts the fact that there are
220 See Allan, above note 28.
221 There is a general concern that an offer of apology will be seen by a defendant as a
sufficient response to wrongdoing and obviate the need to offer financial compensa-
tion. See Wagatsuma & Rosett, above note 29; Gill, above note 107.
222 See Allan, above note 28 at 11.
223 Mark Bennett & Christopher Dewberry, “‘I’ve Said I’m Sorry Haven’t I?’ A Study of
the Identity Implications and Constraints that Apologies Create for Their Recipients”
(1994)13 Current Psychol. 10.
224 Erin O’Hara, “Apology and Thick Trust: What Spouse Abusers and Negligent Doctors
Might Have in Common” (2004) 79 Chicago-Kent L. Rev. 1055.
225 Miller, above note 37 at 92.
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376 Beyond Compensation: Apology as a Private Law Remedy
many reasons why plaintiffs choose to accept settlement terms that may be
less than their legal entitlement or in other ways “unfair” on an objective
basis. A significant reason for the rise of alternative dispute resolution and
interest-based negotiation is the recognition that parties have needs other
than for monetary compensation. Second, the law already “encourages”
apologies for torts where damages are at large. The amount of compensa-
tion awarded takes into account the mitigating effect of an apology despite
the fact that the court is in no better position than a plaintiff to discern true
remorse from fake, and sincerity from insincerity.
Another concern is that an apology will be imposed on a plaintiff as
an alternative to their preferred remedy of damages. There are at least two
ways to safeguard against this. First, consistent with other forms of specif-
ic relief, a court should not order a remedy that a plaintiff does not seek.
While this will not arise in common law actions, there is potential for it to
arise in determining what statutory order will be made. It is submitted that
where no apology has been sought, a court should not order it as a remedy
or have regard to plaintiff’s choice not to seek it as a remedy. Second, the
apology order should not be made if the wording is not acceptable to the
plaintiff. If a plaintiff refuses to accept the wording of the order proposed
by the defendant or the court, the court should decline to make the order.
A related concern arises from the application of mitigation principles to
an apology offered by a defendant. Where the apology is a recognized miti-
gating factor, there is potential for a damages award to be reduced even
though the plaintiff does not accept the apology. It is not suggested that the
mitigating effect of an apology should be judged solely from the plaintiff’s
perspective, but it is submitted that a court should have careful regard to
the plaintiff’s reasons for refusing to accept an apology when deciding
whether their loss has been mitigated.
F. IN WHAT CIRCUMSTANCES MIGHT THE LAW CONSIDER
ORDERING AN APOLOGY AS A REMEDY?
This part seeks to identify when it will be appropriate for consideration to
be given to ordering a defendant to apologize to a plaintiff as a remedy for
civil wrongdoing. Many of the factors discussed in Parts D and E will be
relevant to the decision whether to make an order. This part will establish
the circumstances that will be significant and for which wrongs it might
be appropriate.
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Robyn Carroll 377
1) Circumstances to be Considered
The Final Court of Appeal in Ma Bik Yung indicated a number of factors
that it considered relevant to a decision to exercise a statutory power to
order an unwilling defendant to apologize. These were: the defendant’s
reasons for being unwilling to apologize; the nature and aim of the legisla-
tion; the interest of the community; the gravity of the unlawful conduct;
and the plaintiff’s circumstances, including the extent of the loss and dam-
age suffered. It is not clear whether the Court considered it more or less
likely that an apology will be ordered where the loss and damage is not
substantial. In each case it will depend on whether damages are sought
and are an appropriate remedy.226
It is not surprising that the Court in Ma Bik Yung took into account the
defendant’s objections to the order. As we have seen, the fact that the order
will infringe the defendant’s freedom of expression is significant. There
are a number of other circumstances relevant to the defendant that it is
suggested a court might take into consideration. First, there is the ques-
tion of whether the degree of humiliation and embarrassment that would
result from the order makes it inappropriate.227 This recognizes that the
order is not intended as punishment. A decision as to whether the defend-
ant’s humiliation and embarrassment will make an order inappropriate
will involve weighing all the facts, including the reasons the plaintiff is
seeking an ordered apology and the relative benefit of the order in view of
the suffering or other hardship to the defendant in carrying out the order.
Second, there is the likelihood that the defendant will refuse to comply
with the order. If it appears that the defendant would rather be subjected to
contempt proceedings than comply with the apology order, the order will
not achieve the remedy the plaintiff seeks and an award of damages will
be more appropriate.228 A third factor is the legal nature of the defendant.
Where the defendant is a corporate or government entity, the arguments
226 It is argued in this essay that consideration should be given to the plaintiff’s choice of
remedy on the basis that she is in the best position to judge the value of an apology
ordered against an unwilling defendant. It follows that the court should consider an
order to apologize whether or not the loss and damage is substantial, and even if the
plaintiff does not seek damages.
227 Falun Dafa, above note 46 at para. 30.
228 Most likely the court will increase the amount of the award, as indicated by the Final
Court of Appeal in Ma Bik Yung, above note 26. In these circumstances, the exhorta-
tory aspect of the judgment might lie in an expression by the court of its view that
the plaintiff is deserving of an apology. An obvious difficulty here is the ability of the
defendant to avoid an order by indicating that they will not comply with it. This chal-
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378 Beyond Compensation: Apology as a Private Law Remedy
in favour of an apology order can be balanced more convincingly against
concerns about sincerity, futility, and freedom of expression than where
the defendant is a natural person.229
2) Which Wrongs?
There are various ways to approach the question of “which remedy for
which wrong” and there are benefits of developing a taxonomy for this
purpose. Cooper-Stephenson,230 for example, drawing on the work of
Schuck,231 proposes a five-step analysis for thinking about remedies for civil
wrongs. Certainly, in determining the appropriate response to a wrong we
must look to the goals and policies underlying the primary obligation to
determine the appropriate response. This is particularly important when
proposing a novel order, as is the case here. Whether the discretion to
order an apology order is conferred by the statute that creates the cause
of action or is an exercise of equitable jurisdiction, in each case it will be
necessary for the court to engage in a context-specific evaluation of the
remedy that is most appropriate.232
In principle, equitable relief in the form of an ordered apology is avail-
able for common law wrongs.233 In the case of statutory wrongs, it remains
lenge to the authority of the court should be considered carefully before declining to
make an order that would otherwise be appropriate.
229 Although this was not identified specifically as a relevant circumstance in Ma Bik
Yung, above note 26, it was most likely taken into account. The courts do not neces-
sarily distinguish between natural person and corporate defendants. There are instan-
ces where orders have been made against individuals, for example Western Aboriginal
Legal Service v. Jones & Anor, above note 41.
230 Ken Cooper-Stephenson, “Principle and Pragmatism in the Law of Remedies” in
Berryman, above note 126 at 11.
231 Peter Schuck, Suing Government: Citizen Remedies for Official Wrongs (New Haven:
Yale University Press, 1983).
232 Hammond, “The Place of Damages,” above note 201 at 192. For analysis of Ham-
mond’s approach, and on the relationship between obligation and remedy generally,
see Michael Tilbury, “Remedies and the Classification of Obligations” in Andrew Rob-
ertson, ed., The Law of Obligations: Connections and Boundaries (London: UCL Press,
2004) at 11.
233 While mental distress can result from breach of fiduciary obligations, the law in Aus-
tralia does not protect against this type of harm and would not support an argument
for apology as a remedy; see Breen v. Williams (1996), 186 C.L.R. 71; Paramasivam v.
Flynn (1998), 160 A.L.R. 203; Williams v. Minister, Aboriginal Land Rights Act, 1983
(No. 2) (1999), 25 Fam. L.R. 86. Further consideration may be warranted in other
jurisdictions, especially Canada, where the fiduciary obligation extends to protect
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Robyn Carroll 379
a question of construction as to what orders are available and what inter-
ests the legislation protects. The coercive nature of the order and the al-
ternative of damages to compensate for mental distress and loss of dignity
will greatly limit the scope for apology orders for both common law and
statutory wrongs. One feature of the apology is its capacity to restore self-
respect and dignity. It is submitted that consideration should be given to
the apology order as a remedy when it will function to protect a plaintiff’s
dignitary interests. In each case it will need to be shown that the order will
redress the injury to the plaintiff’s dignity and associated mental distress,
and that the defendant’s circumstances and other considerations do not
outweigh the appropriateness of the order. It is also suggested that in cer-
tain circumstances the contractual interest in performance of a promise
could be supported by specific relief of a promise to apologize. It is not
proposed that apology orders be contemplated as a remedy for mental dis-
tress more generally.
Even though civil actions for private law remedies arising under stat-
ute are generally classified as torts, they are discussed in separate categor-
ies in this essay. This reflects the source of the power to make the order
and the reality that it is more likely that any development of apology orders
will be as a statutory remedy. One aim of this essay has been to see the
potential for orders made in a statutory context to be mirrored in remedies
for common law wrongs. This is a challenging exercise, given the diverse
nature of wrongs. The strong connection between obligation and remedy
cannot be overlooked.234 In understanding the obligation for which the
remedy is sought, the court will need to take many considerations into ac-
count, including whether liability is strict or fault-based and what interests
the obligation aims to protect.235 Therefore, another reason for keeping
statutory orders separate from remedies in tort and contract in the ensu-
against interference with personal interests; see Norberg v. Wynrib, [1992] 2 S.C.R.
226.
234 “Courts generally define obligations in the light of the remedy or remedies available
and the remedy in the light of the obligation that is to be found”: Tilbury, “Remedies
and the Classification of Obligations,” above note 232 at 25.
235 For an analysis of torts that could be applied to guide the development of the apology
order as a remedy; see Cane, above note 8. Cane presents an analysis of tort law as
“a collection of causes of action (or ‘heads of liability’) each made up of three main
components: an interest protected by the law, some conduct which the law sanc-
tions, and a remedy or sanction by which the interest is protected and the conduct
is sanctioned”: ibid. at 1. The importance of this analysis becomes pronounced when
exercising discretion as to the type of remedy to be awarded.
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380 Beyond Compensation: Apology as a Private Law Remedy
ing discussion is to ensure that sufficient attention is paid to the nature
and aim of the particular wrong for which the remedy is sought.
a) As a Statutory Order
In each instance it will be necessary to consider the policy objectives of
the legislation and whether the interests of the plaintiff and wider public
interests, such as those identified above in Parts C and D, will be met by
an order of this nature. This essay has discussed the availability of an order
to apologize under equal opportunity legislation and for charter or bill-of-
rights violations as an example of protection of dignitary interests. In most
cases the power to make the order is implied from the nature of orders
the court is empowered to make.236 It is less common for the statute to
expressly provide for apology orders, although there are instances where it
does. An apology order is available as a statutory remedy for infringement
of an author’s moral rights in respect of a work under the Copyright Act,
1968 (Cth). In this case the court can make an order “that the defendant
make a public apology for the infringement.”237 Anything done by the de-
fendant to mitigate the effects of the infringement may be taken into ac-
count by the court in exercising its discretion as to the appropriate relief.238
It can be argued that in protecting the moral rights of an author the law is
also protecting a dignitary interest.
The Australian Law Reform Commission and the New South Wales
Law Reform Commission have recently proposed a statutory cause of action
against invasions of privacy. The proposed action would provide protection
to natural persons in a broad range of contexts from “unwanted intrusions
into their private lives or affairs.”239 An order proposed as one of a number
of discretionary remedies for invasion of privacy is an order requiring the
236 An example from a civilian jurisdiction of orders to apologize being made as a
“proper measure” instead of or as well as compensation, as a remedy for defamation,
is the Korean Civil Law, Article 750; see Dai-Kwon Choi, “Freedom of Conscience and
the Court-Ordered Apology for Defamatory Remarks” (2000) 8 Cardozo J. Int’l &
Comp. L. 205. Choi refers in this article to the court-ordered apology for defamation
as a “well-established case law example of such a ‘proper measure’ for defamation in
Korea” (at 205), and critiques the decision of the Korean Constitutional Court’s ruling
in 89 Hun-ma 160, Korean Constitutional Court, 1 April 1991, that a court-ordered
apology is unconstitutional as infringing freedom of conscience.
237 Copyright Act, 1968 (Cth), s. 195AZA(1)(d). White, above note 16, cites other examples
from Korea and China.
238 Copyright Act, 1968 (Cth), s. 195AZA(2)(d).
239 New South Wales Law Reform Commission [NSWLRC], Invasion of Privacy, Consulta-
tion Paper No. 1 (2007) at para. 1.20.
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Robyn Carroll 381
defendant to apologize to the plaintiff.240 This proposal recognizes that the
loss or injury resulting from invasion of privacy will result from injury to
feelings and loss of dignity, and in the rare circumstances where freedom
of expression concerns can be overcome, there may be value in an order
to apologize.241 The proposed statutory model restricts the statutory cause
of action to wilful or intentional acts, as opposed to negligent or accidental
acts.242 Although the tenor and nature of the defendant’s conduct might
be relevant to an assessment of damages and the need for an apology in
any particular case, it is submitted that wilfulness and intention of the
defendant are not appropriate discretionary considerations to the decision
whether to order an apology or not. This will avoid the perception that
punishment is intended as a purpose of the order.
b) As a Remedy for Tort
There are numerous torts for which damages are available for mental dis-
tress and loss of dignity.243 It is not proposed, however, that an apology
order should follow the availability of damages for all forms of mental
distress. It is necessary to look beyond the type of injury to the nature of
the obligation that has been breached and the interests that the obligation
aims to protect. The order to apologize is proposed here as a potential rem-
edy for those torts that protect dignitary interests. This refers to torts that
are actionable per se244 and torts not actionable per se where the dignitary
interest is not capable of exact pecuniary measurement but is an element
of the damages award.245 In these instances the law already recognizes
240 See Australian Law Reform Commission [ALRC], Review of Australian Privacy Law,
Discussion Paper No. 72 (2007) at 15 (proposal 5–6); NSWLRC, ibid. at x (List of
Proposals, proposal 2).
241 NSWLRC, above note 239 at paras. 8.45–8.46.
242 Ibid. at paras. 7.23–7.24.
243 Peter Handford, Mullany and Handford’s Tort Liability for Psychiatric Damage, 2d ed.
(Pyrmont: Law Book Co., 2006) at c. 4.
244 See Dugdale & Jones, above note 8 at para. 1-44 for a list of torts actionable per se.
245 Tilbury, Civil Remedies Volume I, above note 200 at para. 3009, citing Exchange Tele-
graph Co. Ltd. v. Gregory & Co., [1896] 1 Q.B. 147 at 153, Lord Esher M.R. (infringement
of intellectual property rights); Pratt v. British Medical Association, [1919] 1 K.B. 244
at 281 (unlawful interference with the practice of a profession). Tilbury explains that
the term damages “at large” is used here in a narrower sense than when referred to
by Lord Devlin in Rookes v. Barnard, above note 22. His Lordship refers in that case to
tort damages being at large where “the award is not limited to the pecuniary loss that
can be specifically proved”; see Rookes v. Barnard, above note 22 at 1221.
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382 Beyond Compensation: Apology as a Private Law Remedy
that damages are recoverable to protect dignitary interests. The novelty
therefore lies in the type of remedy being granted, not in the interest that
is protected by the remedy.
Even among these torts, legislation might have a bearing on the avail-
ability of relief or the exercise of the discretionary remedial power. It is
conceivable that legislation might, for example, expressly provide for an
apology order as a remedy for the tort.246 Alternatively, it might expressly
preclude an apology order, similar to the way that exemplary damages are
now excluded as a remedy for defamation in all Australian jurisdictions.247
A more likely role for legislation in this context will be as an expression of
legislative policy that influences the exercise of judicial discretion whether
to grant coercive relief. In the tort of defamation, for example, legislation
that recognizes the remedial potential of apologies in the form of an offer
to make amends,248 provide for correction or retraction orders,249 or pro-
vide for other forms of non-compensatory orders250 will point to a legisla-
tive policy either in support of or against an order to apologize. In some
jurisdictions the argument has been made that the recognition of con-
stitutionally guaranteed rights will support the exercise of discretion in
favour of an apology in the form of a mandatory injunction as a remedy for
infringement of those rights.251
Another instance of where legislative policy is likely to affect the de-
cision whether to order an apology is where apology legislation applies.
246 It is more likely that this will be the case where the tort action is created by legisla-
tion, as proposed by the Australian and New South Wales Law Reform Commissions
in respect of the action for invasion of privacy; see ALRC, above note 240; NSWLRC,
above note 239.
247 See Defamation Act, 2005 (N.S.W.), s. 37; Defamation Act, 2006 (N.T.), s. 34; Defama-
tion Act, 2005 (Qld), s. 37; Defamation Act, 2005 (S.A.), s. 35; Defamation Act, 2005
(Tas.), s. 37; Defamation Act, 2005 (Vic.), s. 37; Defamation Act, 2005 (W.A.), s. 37. (This
is unlikely to be necessary, as the apology has not become established as a form of
equitable relief.)
248 See Defamation Act, 2005 (N.S.W.), s. 13; Defamation Act, 2006 (N.T.), s. 12; Defamation
Act, 2005 (Qld), s. 13; Defamation Act, 2005 (S.A.), s. 13; Defamation Act, 2005 (Tas.), s.
13; Defamation Act, 2005 (Vic.), s. 13; Defamation Act, 2005 (W.A.), s. 13.
249 See Korean Civil Law, Article 750.
250 Consider, for example, the declaration of falsity proposed by the New South Wales
Law Reform Commission in its Report on Defamation. See NSWLRC, Defamation,
Report No. 75 (1995). (Note: this proposal was not adopted by the uniform Australian
Defamation Acts.)
251 TV3 v. Eveready, above note 83 at 440–41, Cooke P.; Moore v. Canadian Newspapers,
above note 103.
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Robyn Carroll 383
Parliaments in Australia and other jurisdictions have made clear through
the enactment of this legislation that their aim is to encourage apologies
in cases of negligence rather than compel them. In the unlikely scenar-
io that a court was to contemplate an order to apologize as a remedy for
negligence, it is submitted that this legislative policy would weigh heavily
against making an order.
c) As a Remedy for Breach of Contract
Distress and disappointment are a common result of breach of contract,
but damage of this nature is not usually significant and not generally re-
coverable.252 There are circumstances where damages for non-pecuniary
loss are recoverable, including where the breach causes physical inconven-
ience or physical injury. In addition, damages will be recoverable where
the object of the contract has been to provide pleasure, relaxation, or free-
dom from molestation.253 Damages are also available for a breach of con-
tract that causes loss of reputation or loss of publicity when the contract
expressly or impliedly promises publicity or enhancement to reputation.254
The damages awarded in Summertime Holdings are an example of damages
falling into the latter category.255
Not surprisingly, it is more difficult to apply the “protection of digni-
tary interests criteria” advanced in this essay to breach of contract than to
torts. It is difficult to imagine circumstances where an apology would be
ordered by injunction as a remedy for breach of contract. In this context
the protected interest will need to be found in the promisee’s reputation
or some other dignitary interest, and it should demonstrate that enforce-
ment of a particular promise will protect that interest. It is submitted that
the case for enforcing a promise to apologize is strengthened where the
promise that protects the promisee’s reputation forms part of a comprom-
ise agreement, as was the case in Summertime Holdings. There is a clear
252 Addis v. Gramophone Co. Ltd., [1909] A.C. 488; Baltic Shipping Co. v. Dillon, above note
206.
253 Baltic Shipping Co. v. Dillon, ibid. at 365.
254 See, for example, Marbe v. George Edwardes (Daly’s Theatres) Ltd., [1928] 1 K.B. 269;
Herbert Clayton and Jack Waller Ltd. v. Oliver, [1930] A.C. 209. See also J. Carter, Elisa-
beth Peden, & Greg Tolhurst, Contract Law in Australia, 5th ed. (LexisNexis Butter-
worths, Australia, 2007) at 848.
255 Nicholas Seddon & M. Ellinghaus, Cheshire and Fifoot’s Law of Contract, 8th ed. (Cha-
tswood: LexisNexis Butterworths, 2002) at para. 23.18, referring to the judgment of
Brennan J. in Baltic Shipping Co. v. Dillon, above note 206 at 365 as authority for this
conclusion.
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384 Beyond Compensation: Apology as a Private Law Remedy
policy in the law to encourage settlement agreements between parties to
legal disputes.256 In Summertime Holdings the coercive relief could have
been characterized as enforcement of a settlement agreement rather than
as a remedy for defamation. In that case the reluctance to order specific
performance may have been overcome, given that there were no other
obstacles to carrying out the order and the order would have been made
against a corporate defendant. In principle, a court can order a defendant
to perform a promise to apologize, though it will rarely arise on the facts.
Even if it does so arise, a plaintiff will have significant difficulties over-
coming the freedom of expression argument and the argument that dam-
ages is an adequate remedy for breach of a contractual obligation.
G. CONCLUSION
This essay has sought to ascertain the justification for and remedial pur-
pose of court-ordered apologies and the potential for the ordered apology
as a common law remedy. It did so by reviewing equal opportunity claims
where orders to apologize have been considered and the handful of com-
mon law cases where the possibility of an order to apologize has arisen.
It concludes that although the purpose of an ordered apology may over-
lap with damages that compensate for mental distress and loss of dignity,
an apology order serves purposes beyond compensation. These include
restoration of a plaintiff’s sense of self-respect and dignity through ac-
knowledgment of wrongdoing by the defendant and, on a broader societal
level, redressing systematic discrimination and imbalances of power and
reinforcing norms of socially acceptable conduct.
To reiterate Shuman’s point at the beginning of this essay, an apology
is known to the law to have the potential to help people who have suffered
emotional harm through the wrongdoing of others in ways that monetary
damages alone cannot. It is another question entirely whether a court-
ordered apology has the same potential. Arguments are presented in this
essay that support the view that there is some potential, though it will
be a rare case where it should be ordered as a remedy for a common law
wrong. It is submitted that consideration should be given to the apology
order as a remedy when it will function to protect a plaintiff’s dignitary in-
terests. Many aspects of this proposal require further exploration, includ-
256 See, for example, Wigan v. Edwards (1973), 1 A.L.R. 497 (forbearance to sue or com-
promise of a claim is good consideration for a promise to perform an existing legal
obligation); Evidence Act, 1995 (Cth), s. 131 (inadmissibility of settlement negotiations).
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Robyn Carroll 385
ing: whether another type of order could achieve this purpose with less
distortion to the meaning of apology; which parties should be amenable
to these coercive orders; and in which circumstances an order is justified.
While there are limits to our ability to generalize about the justice, social,
psychological, and other goals that might be achieved by ordering an apol-
ogy as a response to any particular common law or statutory wrong, it does
appear that a court-ordered apology has a role to play in protecting digni-
tary interests, and that it can achieve remedial and societal goals beyond
compensation.
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