Prue Vines

Apologising for Personal Injury in Law: Failing to Take Account of Lessons from Psychology in Blameworthiness and Propensity to Sue

We know that the vast majority of people do not sue after personal injury. There is a significant literature on propensity to sue which relates it partly to the persons view of blame or attribution of responsibility. In many jurisdictions now there is legislation to protect apologies from becoming an admission of legal fault because of the perception that apologies are important to peoples functioning. The psychological literature suggests that the psychological role of an apology is closely connected to the attribution of responsibility and that this plays out in a complex way to make apologies effective or ineffective within the psychological or legal context. This article explores how the legal regimes which seek to encourage apologies, (particularly in regimes of compensation for personal injury), have often failed to take account of the lessons that psychology has to offer in making apologies effective both psychologically and in reducing litigation.

Apologies, Liability and Civil Society: Where to from Here?

1 Professor, Faculty of Law, University of New South Wales: p.vines@unsw.edu.au. 2 Prue Vines and Matthew Butt, ‘Running Out of Compensation Money: Whipping Away the Social Security Blanket?’ (2013) 7 Court of Conscience 17; Genevieve Grant et al, ‘When Lump Sums Run Out: Disputes at the Borderlines of Tort Law, Injury Compensation and Social Security’ in Kit Barker et al (eds), Private Law in the 21st Century (Hart Publishing, 2016). Apologies, Liability and Civil Society: Where to from Here?

Problems of Authority in Law and Anthropology: A Case Study on Aboriginal Australian Inheritance

Problems of authority are the most significant problems in interdisciplinary work in law. Each discipline has its own epistemic community with a view of how truth is to be determined. In law this is called ‘authority’, so I use this terminology here. I offer as an example of problems of authority in interdisciplinary work a project carried out in Australia that used both anthropology and law to do research on the needs of Aboriginal people in Australia1 in relation to inheritance. For Aboriginal people in Australia the common law is not adequate as it fails to take into account a number of issues that are significant to them, including kinship, dealing with the body, passing on customary law knowledge and objects, among others. There is a double problem of authority here because the anthropology concerned is also about customary law, so that this project involves more than one form of interdisciplinarity. The question of authority is central to legal research, and lawyers are very familiar with it. Legal systems frequently recognise other legal systems’ rules of authority. For example, if an Australian person makes a will that covers land in the Netherlands, the conflict of laws rules applied by Australian law recognises the Netherlands’ rules about land law. This is done often, and there is no difficulty with recognising the relevant authority of the law. Interdisciplinary work in law and anthropology, as in this project, requires recognition of the rules of authority of both anthropology and law. In this project the double problem of authority arose because the relevant anthropology involved Aboriginal Customary Law. Australian common law does not recognise Aboriginal Customary Law as law (except in very particular cases), and therefore does not recognise its rules of authority in relation to inheritance as it might if it were to see it as law. So in this project anthropology (which has a different way of considering authority) was being used to illuminate the authority pattern of one legal system for the