Protection for apologies and expressions of regret

Apologies have a positive role in resolving disputes and providing a mechanism for achieving justice between people with differing perspectives. A sincere apology offered in a timely manner can reduce anger about what happened and begin the process of rebuilding trust.

Apologies and expressions of regret provided to workers following a workplace injury are protected under the Workers' Compensation and Rehabilitation Act 2003 (the Act) and excluded from being considered in determining liability for common law damages, where a notice of claim for damages is made on or after 30 October 2019.

Please note this information is intended as general guidance only.

If you have any concerns regarding the legal implications more broadly of offering a full apology, you should seek independent legal advice.

Why should apologies be protected?

Understandably, employers may be hesitant to apologise to an injured worker, fearing that it will be interpreted as an admission of liability.

An independent review of the Queensland workers' compensation scheme in 2018 found that an employer's response to a work-related injury has the potential to impact not only on the severity or duration of a worker's injury, but also the worker's decision to pursue a common law damages claim. The review noted that if a worker felt that their employer did not care about them, they were much more likely to feel aggrieved and distressed and pursue litigation.

What is the difference between an apology and an expression of regret?

The Act protects both apologies and expressions of regret.

These two terms are provided as sometimes an apology may not feel appropriate under the unique circumstances which led to the worker's injury.

The Act defines an expression of regret as 'any oral or written statement expressing regret for the incident to the extent that it does not contain an admission of liability on the part of the individual or someone else'.

An apology is defined as 'an expression of sympathy or regret, or of a general sense of benevolence or compassion, in connection with any matter, whether or not it admits or implies an admission of fault in relation to the matter'.

Based on these definitions, an apology may or may not imply an acceptance of responsibility for what has occurred whereas an expression of regret is purely an expression of sympathy.

Does the Act guide how an employer should make an apology?

No. The Act does not provide any guidance as to the form in which an apology should be made.

There is no one right way to apologise. The most appropriate content and method of communication (whether it be written or verbal) for an apology should be tailored to the needs of the worker and the situation.

It is helpful to start by considering what the injured worker is seeking. Some workers may be looking for acknowledgement of wrongdoing and others may just want to know what happened and reassurance that it will not happen again.

The apology or expression of regret will have more impact if it is:

• given as soon as practicable
• delivered from the people directly involved (such as the person that allegedly caused harm) or a representative with authority (such as a manager or supervisor)
• genuine and sincere, noting that an effective apology or expression of regret depends on the way it is delivered, including the tone of voice and non-verbal communication
• phrased so that it is clear on what is being done to address the situation
• contains the words 'I am sorry' or 'we are sorry'.

An apology or expression of regret could be as simple as:

“I am/we are very sorry for what has occurred and that you were injured as a result.

We want you to know that we’ll work with you and [the insurer] to make sure you have the best recovery possible."

If there was an incident that involves further investigation:

We’re looking into exactly what happened and we’ll give you information as it comes to hand. It’s really important to us to understand your version of what happened”

Injured workers are likely to have a heightened emotional sensitivity and any insincerity, real or perceived, may be interpreted negatively. For this reason, non-verbal communication (such as body positioning, eye contact, and active listening) should be consistent with verbal communication while apologising or expressing regret.