“Agony Of The Moment”

DEFINITION & SCOPE

“Agony of collision”, or “agony of the moment”, is a defence that can sometimes be successfully plead in claims for damages. The doctrine states that when a person, who through no fault of his or her own, is placed in a sudden emergency, is not negligent if the said person exhibits a degree of care which a reasonably prudent person would have exhibited under the same or similar circumstances. The defence will allow a person who is faced with a sudden emergency to make a choice which would not have been acceptable in a non-emergency situation, and even in retrospect, if it was not the best choice of those available. The defence is commonly plead in claims involving motor vehicle accidents.

As held in Walls v. Mussens Ltd. et al (1969), 11 D.L.R. (3d) 245 at 247-48 (N.B.C.A.), the rule although applied originally in Admiralty cases, now has general application where danger to life and limb or to property is brought about by the negligence of the defendant: (see The "Bywell Castle" (1879), L.R. 4 P.D. 219 per Brett, L.J., at p. 226, and Cotton, L.J., at p. 228; Rowan v. Toronto Ry. Co. (1899) 29 S.C.R. 717, and Tatisich v. Edwards, [1931] 2 D.L.R. 521, [1931] S.C.R. 167).

CASES

Hildebrand v. Musseau (2010 BCSC 1022)  

Relevant facts: The Plaintiff, who was riding dirt bikes side-by-side with a friend along the right-hand side of the road, was forced to take evasive action after noticing the Defendant driving towards him on the wrong side of the road. The Plaintiff was struck by the Defendant’s truck as he cut in front of him in an attempt to avoid the collision. The Plaintiff argued that although his decision to cut across the road in front of the Defendant’s truck ultimately led to the accident, he was entitled to rely on the “agony of the moment” rule described in the case of Wormell v. Hagen, 2009 BCSC 1166 (“Wormell”). In Wormell, the Court referred to the common law rule that individuals who find themselves in “emergency situations” are not required to conform perfectly to the usual standard of care. The “agony of the moment” defence to contributory negligence recognizes that it is not always possible to respond with perfect clarity of thought in highly stressful situations. This rule is premised on the idea that, in general, the standard of care in a given situation is only that of a “reasonable” person.

Parkinson v. Liverpool Corporation [1950] 1 All ER 367](Court of Appeal)

Facts: A bus driver came to a sudden halt to avoid a dog in the road.  This emergency stop caused that bus conductor and a passenger who was standing, to be thrown from their feet.  In this case, the court held that the driver had acted reasonably in coming to a swift halt and that his actions had not amounted to negligence.  It was considered that an emergency situation had arisen and the driver’s split second decision was a reasonable one.

Wormell v. Hagel (28 August 2009)(British Columbia Supreme Court, Kamloops)(2009 BCSC 1166).

The Court awardad the Plaintiff just over $570,000 in total damages as a result of a 2003 injury. The facts: The Plaintiff was standing on top of cargo on a flat bed truck. At the same time, the Defendant was operating a crane and intended to lift the cargo. The cargo shifted while the Plaintiff was still standing on it and in the “agony of the moment ” the Plaintiff jumped off the truck to the ground which was some 12 feet below. In jumping on the ground the Plaintiff suffered various injuries including a “crush fracture to the left ankle and a tear to the anterior cruciate ligament of his right knee “. The Defendant was found at fault for this incident for operating the crane at a time when it was unsafe to do so. The Plaintiff was found faultless for jumping to the ground in the “agony of the moment”. Mr. Justice Goepel states: A party who acts negligently and creates a danger carries a heavy onus if he then seeks to cast any blame for the accident on the injured party: Haase v. Pedro (1970), 21 B.C.L.R. (2d) 273 (C.A.) at para. 16, aff’d [1971] S.C.R. 669. The standard of care applied to individuals in emergency situations is not one of perfection. The law in such circumstances was explained in Walls v. Mussens Ltd. et al(1969), 11 D.L.R. (3d) 245 at 247-48 (N.B.C.A): ... I think the plaintiff is entitled to invoke the “agony of the moment” rule as an answer to the allegation of contributory negligence made against him. The rule is stated by Mr. Glanville Williams in his work Joint Torts and Contributory Negligence at p. 360-1: It is well settled that where a sudden emergency arises through the fault of the defendant, the plaintiff who acts reasonably in an attempt to extricate himself is not guilty of contributory negligence merely because he unintentionally aggravates the situation. Also, where the plaintiff is compelled to make a quick decision in the ‘agony of the moment’ he is not expected to take into account all the considerations that a calmer appraisal of the situation might present to the mind. Perfect foresight and presence of mind are not required. This rule, sometimes called the ‘agony of the moment’ rule, is merely a particular application of the rule that the standard of care required of both plaintiff and defendant is that of a reasonable man. The Law of Torts, 3rd ed., by J.G. Fleming contains the following statement at p. 247: On the other hand, a person’s conduct in the face of a sudden emergency, cannot be judged from the standpoint of what would have been reasonable behaviour in the light of hind-knowledge and in a calmer atmosphere conducive to a nice evaluation of alternatives. A certain latitude is allowed when in the agony of the moment he seeks to extricate himself from an emergency not created by his own antecedent negligence. The degree of judgment and presence of mind expected of the plaintiff is what would have been reasonable conduct in such a situation, and he will not be adjudged guilty of contributory negligence merely because, as it turns out, he unwittingly too k the wrong course. The rule although applied originally in Admiralty cases, now has general application where danger to life and limb or to property is brought about by the negligence of the defendant: see The “Bywell Castle” (1879), L.R. 4 P.D. 219 per Brett, L.J., at p. 226, and Cotton, L.J., at p. 228; Rowan v. Toronto Ry. Co. (1899) 29 S.C.R. 717, and Tatisich v. Edwards,[1931] 2 D.L.R. 521, [1931] S.C.R. 167. The test to be applied in circumstances such as those as in the case at bar is, in my opinion, not whe ther the plaintiff exercised a careful and prudent judgment in doing what he did, but whether what he did was something an ordinarily prudent man might reasonably have done under the stress of the emergency. In this case, Mr. Hagen’s negligent act caused the emergency situation. Mr. Wormell did not have time to determine with any certainty whether the load was going to fall or stay. He had to make a quick decision in the “agony of the moment”. He chose to jump clear. As it turned out, that was the wrong decision because the load itself did not come off the truck. Matters, however, could have turned out otherwise. In deciding to jump away from the load Mr. Wormell did something an ordinary prudent man might reasonably have done under the stress of the emergency.

Richie’s Car Hire Ltd v. Bailey (1958) 108 LJ 348

Facts: The defendant, Mr Bailey, had hired a car from Richie’s Care Hire on the contractual agreement that he should not be liable for any damage to the vehicle that was not due to his fault or action. Mr Bailey, driving down a wide road at night, spotted a cat crossing his path and swerved to avoid it.  Before he could brake, he had driven into a tree and damaged the car.  The court found the defendant was not liable as it was not his fault that he had driven into the tree.  He was, therefore, not liable for the damage caused to the car.

Gussman v. Gratton Storey [(1968) 112 SJ 884,

Relevant facts: The defendant violently applied her brakes to avoid hitting a pheasant and the claimant’s car, that was driving along behind, rear-ended her.  The court found that the defendant was liable and awarded damages.  At the Court of Appeal, the key issue in all these cases was highlighted, when the appeal judge made clear that the trial judge had had the right, as a matter of law, to hold the defendant negligent.  It was again the facts that were crucial to liability and these were not disputed at appeal.

Stuart v Walsh [2012] NSWCA 186 (Court of Appeal)

Relevant facts: At approximately 4 pm on 28 May 2007, the respondent, Dr Walsh, who was 73 years of age at the time of accident, was riding his bicycle and was struck and injured by a truck owned by the second appellant. The truck was driven by the first appellant, Mr Stuart, an employee of the second appellant. Allianz Australia Insurance Limited was the CTP insurer of the truck. Dr Walsh was riding in the emergency breakdown lane when he looked over his right shoulder and saw Mr Stuart driving his truck between 65-90 metres behind him. Dr Walsh made a 90 degree right-hand turn and proceeded to cross 2 lanes of traffic with the intention of alighting from his bike and walking his bicycle over the median strip for the purpose of re-mounting and proceeding on his journey. Mr Stuart was driving at 80 km/h in the right-hand lane and intended to change lanes to the left-hand lane. He had commenced that manoeuvre when he first saw Dr Walsh riding his bicycle in the breakdown lane. Dr Walsh proceeded out from the breakdown lane onto the carriage way. Mr Stuart took evasive action, braked heavily and tried to veer to the right. The truck collided with the rear of Dr Walsh's bicycle. Held: The appellants submitted that the primary judge erred in law, firstly, failing to determine whether Mr Stuart was in breach of duty to take reasonable care in all the circumstances, and secondly, although he was expressly referred to and addressed on the relevant provisions of the Civil Liability Act 2002 and, in particular, s 5B, he did not structure his judgment to address each of the requirements of that provision. Tobias AJA did not regard these asserted errors of law as being the ultimate determination of the appeal. The appeal involved a question of fact. The question which required determining was whether, in the circumstances which confronted Mr Stuart when he first observed Dr Walsh moving out of the breakdown lane, his response was reasonable given the risk so created. In addition, his Honour concluded that determining the point of impact was not relevant to the resolution of the true issues in the appeal. His Honour established that Mr Stuart did not have the opportunity for calm reflection which makes it easy after the event to suggest it would have been wiser if he had remained in the left-hand lane, rather than to have steered slightly to his right and at the same time floored his brakes so that his rear wheels locked and his vehicle went into a skid. If steering to the right was, in hindsight, the wrong thing to do, it was an error of judgment made in the "agony of the moment". In Leishman v Thomas, Street CJ stated: "This so called principle of acting in the 'agony of the moment' is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of the circumstances, would not have behaved." Tobias AJA adopted and adapted the observations of Street CJ and stated that Mr Stuart was forced to react to a sudden, unexpected and unheralded scenario when he observed a cyclist, suddenly and without warning, move into his path a relatively short distance in front of him. He did the obvious thing and immediately applied his brakes. The fact was that Dr Walsh's conduct brought about a sudden emergency in circumstances where it would be unreasonable to criticise Mr Stuart for taking the avoidance action that he did. The primary judge's finding that Mr Stuart was negligent by failing to keep a proper lookout was not sustained. Neither of the experts suggested that having observed Dr Walsh moving suddenly onto the carriage from the breakdown lane was indicative of a failure on Mr Stuart's part to keep a proper lookout. His Honour stated that the issue was not whether there was an alternative course of action Mr Stuart could have taken which would have avoided the collision, such as remaining in the left-hand lane without the necessity of having to apply his brakes. Dr Walsh's alternative case that Mr Stuart acted unreasonably in that he overreacted to the situation with which he was faced was also rejected by Tobias J. A verdict in favour of the appellants was given. The respondent was required to pay the appellants' costs of the proceedings at first instance and the appeal.

Welch v. O’Leary [1998] CLY 3911

Facts: The claimant performed an emergency stop in order to avoid a badling of ducks crossing the road.  The defendant claimed that his welfare, as a human being, should override that of wild birds and it was therefore unreasonable to perform an emergency stop to save the birds when it put him at harm. His argument was that Gussman should be followed. The claimant argued along the lines of Richie’s Car Hire and Parkinson, and stated that it was not their responsibility to ensure that the defendant was at a safe distance before deciding to stop. The claimant said that it was the defendant’s responsibility to allow a safe stopping distance at any time. The claimant won his claim for damages and was not considered to be at all negligent.