Is saying "Sorry" assuming fault?

Question

I am unsure where I heard of this, but the basic premise is that if an individual in says "Sorry" either to law-enforcement or to another party, they are in effect, assuming fault for a given action.

i.e. car accident: two cars, one rear-ends the other. The presumably at-fault driver says "Sorry" and this is documented. Insurance companies would utilize such a statement as an admission of guilt.

To what degree is this claim true? Should a person in all potentially legal-situation remain silent and not communicate at all?

Answer 1

No, but it part of the overall fact pattern that determines liability.

“Sorry” is ambiguous: it can be a request for forgiveness for wrongdoing but it can also be a general expression of regret or an expression of sympathy. I’m going to meet a friend today whose wife has just passed away from cancer - I will almost certainly use the word “sorry” when I see him: no one would take that to mean that I am responsible for her death. Context matters.

You question results from some unscrupulous and largely historical actions of insurance companies. For obvious reasons, insurance contracts prohibit the insured from admitting liability. Historically insurers would take saying sorry as an admission of liability in order to deny the claim. Modern consumer protection law would make this illegal and indeed, some jurisdictions have legislated that saying sorry is not an admission. However, who wants to get into a dispute with your own insurer?

Answer 2

Your thinking that an apology might be understood as admitting fault hasn't gone unnoticed by lawmakers in some countries. I know you're asking about the USA, but I thought to mention (as I commented) that Ontario actually has an "Apology Act" that essentially says that you can apologize for something and that apology is not to be considered a confession, admission of fault/guilt.

Apology Act, 2009

S.O. 2009, CHAPTER 3

Consolidation Period: From April 23, 2009 to the e-Laws currency date.

No Amendments.

Definition

1. In this Act,

“apology” means an expression of sympathy or regret, a statement that a person is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit fault or liability or imply an admission of fault or liability in connection with the matter to which the words or actions relate. 2009, c. 3, s. 1.

Effect of apology on liability

2. (1) An apology made by or on behalf of a person in connection with any matter,

(a) does not, in law, constitute an express or implied admission of fault or liability by the person in connection with that matter;

(b) does not, despite any wording to the contrary in any contract of insurance or indemnity and despite any other Act or law, void, impair or otherwise affect any insurance or indemnity coverage for any person in connection with that matter; and

(c) shall not be taken into account in any determination of fault or liability in connection with that matter. 2009, c. 3, s. 2 (1).

There are, of course, some exceptions. You can read the act here.

Edit: This law also applies in British Colombia. See the similar Act here.

According to, MillerThomson Lawfirm, as of Nov. 2009:

To date, seven Canadian provinces have adopted legislation of this sort. British Columbia passed the first Canadian Apology Act in 2006. Saskatchewan adopted similar legislation in its Evidence Amendment Act, 2007. Alberta followed with an amendment to its Evidence Act in 2008. Other provinces that have adopted similar legislation to date are Manitoba, Newfoundland and Nova Scotia.

It is important to be aware however that the Acts only provide immunity from civil liability. They do not apply to criminal proceedings or Provincial Offences Act matters

And for further reading, The University of Victoria has a draft paper entitled "Legal Consequences of Apologies in Canada"