Factual Background

1. On the evening of 13 July 2015, the defendant, who was an inexperienced driver, was travelling in a Mitsubishi Lancer (‘the Lancer’) behind a Holden Commodore (‘the Commodore’). He had three passengers, being his younger siblings and a friend.
2. The Commodore unusually came to a stop in the middle of the road and its lights were extinguished, which caused the Lancer to also stop approximately two metres behind the vehicle. The defendant reportedly looked in his rear view mirror at this time, and did not see any vehicles behind him.
3. The occupants of the Commodore (‘the assailants’) then emerged and proceeded to walk at a fast pace towards the Lancer. One of the assailants had a metal object, which was used to strike the driver’s side window. An assailant was also attempting to drag the front seat passenger from the vehicle.
4. The defendant reversed the Lancer in an attempt to escape the assailants. In doing so, he collided with the plaintiff’s vehicle, a Suzuki Swift, which was stopped approximately eight metres behind him.

First Instance Decision

1. The plaintiff argued that a reasonable person in the defendant’s position ought to have known that it was probable that at least one car would stop behind him after he stopped his vehicle behind the Commodore and before he felt the need to reverse.
2. Further, the plaintiff contended that to judge the defendant’s actions only from the time he decided to reverse ignored the overall circumstances of the subject accident. The plaintiff argued that the defendant’s breach of duty of care occurred when the defendant failed to properly become aware of his surroundings after he stopped behind the Commodore, and before the assailants emerged.
3. The trial judge held that the defendant failed to keep a proper lookout and was in breach of his duty of care. He failed to identify the plaintiff’s vehicle when he looked in the rear vision mirror after first coming to a stop, which was against his obligation to pay reasonable attention to all that is happening on or near the roadway that may present a source of danger.
4. Had the defendant identified the plaintiff’s vehicle at this time, the collision would not have ensued as he would have known he had enough room to escape without colliding with the plaintiff’s vehicle.
5. The trial judge found that the defendant’s ‘fearful, and perhaps even panicky’ state was not sufficient to warrant a loss of capacity for risk assessment as to have reversed in an uncontrolled way.

Appeal

1. The defendant appealed the decision, on the narrow issue of whether the defendant had acted ‘in the agony of the moment’, and thus whether he could escape a finding that he had not acted reasonably in the circumstances. It informs the content or scope of the duty of care owed in a particular situation and is relevant to whether there has been a breach of duty of care.
2. It was accepted by the defendant that had he not been confronted by an emergency, where his vehicle and its occupants came under a sudden and savage attack, he would certainly have been negligent in reversing his car without checking for the presence of another vehicle behind it. What informed the content of the duty the defendant owed other road users, it was argued, was the sudden violent and terrifying attack, and his understandable preoccupation with escaping the danger.
3. The success of an ‘agony of the moment’ defence is dependent on what a reasonable driver in the circumstances would have done and depends on the circumstances of the particular case.
4. The defendant was successful in arguing that the trial judge had placed too high a standard of care on the defendant, who was urgently attempting to escape from a violent attack on him and his passengers. Instead of being negligent, given the particular circumstances of the case, the defendant’s actions were considered by the majority of the Court of Appeal to have been reasonably prudent.
5. The majority considered the first instance decision was made with the benefit of hindsight rather than looking at the defendant’s actions through the prism of the crisis he found himself in. The reasonableness of the defendant’s actions had to be considered by looking at the emergency that confronted the defendant, and what a reasonable person in his position would have done when faced by that, rather than as an intellectual exercise later on, removed from the crisis, when there was an opportunity for calm reflection.
6. On this basis, the majority found that the immediacy and extent of the crisis facing the defendant were such that it was not unreasonable for the defendant to reverse the Lancer without first checking behind him, irrespective of his previous knowledge of the approaching car behind him.
7. The majority decision confirmed that a determination ‘must have regard to all circumstances including an emergency or threat confronting that party’. It follows that the ‘reasonableness of a defendant’s conduct must be judged according to the circumstances of a particular case’.
8. Elkaim J dissented, finding (as the plaintiff urged) that the breach of duty of care occurred before the violent attack started, when the defendant checked his rear view mirror after the Commodore stopped in front of him. Had he done so properly, he should have registered the presence of the plaintiff’s vehicle in the near vicinity, and taken it into calculation when later confronted by an emergency which required him to remove his vehicle and the occupants from danger, Elkaim J noted particularly the trial judge had found, as a fact, that the defendant could have made his escape by reversing at a different angle without colliding with the plaintiff’s vehicle, had he only regarded its presence as his Honour would have found he had a duty to do.

Practical Implications

1. The decision demonstrates that an ‘agony of the moment’ defence is only likely to be available in unusual cases.
2. If you have a claim where the insured was, in the words of Chief Justice Street in Leishman v Thomas:

“forced to act in a sudden crisis or emergency, unexpected and unheralded, without (the) opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else”

then this decision, and the line of authority on which is rests, could be of assistance.