Written by Mashuq Rahman
Liability for the damages that ensue from a motor collision may be disputed in circumstances where a driver has caused a collision when acting under distress to escape danger or harm, such as road rage or a violent attack. Courts have referred to this as acting in the ‘agony the moment’ and this defence is often raised in circumstances where there was a threat or emergency affecting a person’s actions at the time they caused a collision.
Whether a Court finds the defence of the ‘agony of the moment’ is enlivened will ultimately turn upon the facts of each individual case. In making its determination, the Court will assess whether a person had acted reasonably in response to the relevant situation of emergency or threat.
Legal Principles
Leishman v Thomas (1957) 75 WN (NSW) 173 (‘Leishman’) is an authority Courts often refer to when considering whether the ‘agony of the moment’ defence is applicable. The relevant principles articulated in Leishman are as follows:1
- In determining whether a person’s conduct is negligent, consideration must be given to all the surrounding circumstances including any emergency or threat confronting the person.
- If a person has been forced to act without the opportunity for calm reflection due to a sudden and unexpected emergency or threat (not of their own making) they are not negligent if they make an error of judgment even if, with hindsight, a more prudent course of action could have been taken.
- The reasonableness of a person’s actions in response to a stressful or emergency situation is to be judged from their perspective at the point in time the events unfolded and not with the benefit of hindsight.
The preceding principles recognise that when a person makes a mistake when acting under distress in an emergency situation, they should not be found negligent given they have not had the time to carefully evaluate their actions and needed to act quickly to evade harm.
Case Study – Road Rage Incident
An example of how the Court applied these principles in an incident involving road rage was provided in the ACT Supreme Court of Appeal decision of Reardon v Seselja [2021] ACTCA 4.
Factual Background:
- Mr Reardon (aged 17) was driving with his friend and siblings as passengers at night.
- Following an earlier unfriendly exchange, a Commodore which was driving in front of Mr Reardon’s vehicle (Lancer) was driving erratically and alternated between slowing down and speeding up.
- Suddenly, the Commodore driver slammed his brakes and stopped in the middle of the road just in front of the Lancer. The Commodore driver and his passenger exited the vehicle and ran towards the Lancer with a metal object and began bashing on the driver side window of the Lancer and opened one of the doors trying to get one of the passengers out of the Lancer.
- To attempt to escape the violent attack, Mr Reardon reversed his Lancer and collided into a Suzuki driven by Ms Seselja which was behind him. Mr Reardon did not see the Suzuki behind him.
- Following the collision, Ms. Seselja made a claim for negligence against Mr Reardon due to suffering injuries.
Issue
The issue for determination was whether Mr Reardon’s actions in reversing into the Suzuki were negligent in light of the collision occurring in circumstances when he was trying to escape a violent attack.
Mr Reardon denied negligence. His submission was that he had not breached his duty of care and his actions in reversing the Lancer when trying to urgently escape a violent attack were reasonable and consistent with what a reasonable person would have done if faced with the same circumstances.
Ms. Seselja contended that a breach of duty of care arose on Mr Reardon’s part in his failure to keep a proper lookout and see the Suzuki behind him to avoid the collision.
Court Findings
The Court found:
a) Given the imminency of the threat facing Mr Reardon, it was reasonable for his primary attention to be focused on the assailants and escaping the attack, and it was not unreasonable for him to reverse without checking his rear-view mirror.
b) Although, with hindsight, Mr Reardon should have checked his rear-view mirror before reversing to avoid colliding into the Suzuki, the reasonableness of a person’s actions are not assessed with the benefit of hindsight – reasonableness is determined by looking at what a reasonable person would have done in response to the emergency at the time it unfolded.
The Court therefore allowed the appeal brought by Mr Reardon, found that he did not act negligently and awarded him costs.
Takeaways
In assessing liability for a motor collision, it is necessary to have regard to all the circumstances leading up to the collision. If an insured raises that they were forced to act in an emergency which resulted in them causing a collision, it is important to discuss the nature of the emergency or threat in detail with the insured and any witnesses as the defence of the agony of the moment may be available.
Should you wish to discuss the decision and its implications, please contact Doran Yacobi on 03 9947 4504 or any member of the Ligeti Partners team on 03 9947 4500.
[1] See Leishman v Thomas (1957) 75 WN (NSW) 173, 175 (Street CJ).
