Agony of the collision
This page discusses the principle of “agony of the collision” which generally means that drivers will not be held to a standard of perfection when in an emergency situation.
Drivers not held to a standard of perfection in an emergency
Drivers are only expected to act reasonably, and are not held to a level of perfection. This is especially true when a driver is confronted with an emergency situation that he or she did not create. The phrase “agony of the collision” is a phrased used to describe the moment of panic that may be experienced moments before a collision is about to occur, and courts have said that drivers are not to be held to an overly high standard in such circumstances.
In C.P. Ltd. v. Gill,  SCR 654 the plaintiff suddenly came across an improperly lit vehicle and the evasive action taken by him resulted in an accident. The Supreme Court of Canada said the plaintiff could not be faulted for how he handled the situation in that particular case:
It is trite law that faced with a sudden emergency for the creation of which the driver is not responsible, he cannot be held to a standard of conduct which one sitting in the calmness of a courtroom later might determine was the best course.
(C.P. Ltd. v. Gill,  SCR 654 at 665).
In Tubbs v. O'Donovan (1997), 43 BCLR (3d) 381 (CA) a cyclist was heading north and who wanted to turn left to head east. The cyclist looked in the rear view mirror attached to his bicycle, and saw a van (also heading north) approaching from behind. Thinking that he had enough time to cross in front of the van, the cyclist turned left to cross from the right side of the road towards the left. The van was closer behind the cyclist than the cyclist had anticipated, and then van swerved to the left to avoid the cyclist. The van almost made it past the left of the left turning cyclist, but the right rear side of the van contacted the bicycle tire and the cyclist was knocked to the ground.
The trial judge held that Ms. O’Donovan, the driver of the van, had to react in the "agony of collision" and did so by instinctively swerved left to avoid what she perceived to be an imminent collision. The cyclist argued that Ms. O’Donovan had sufficient time and that she was not faced with the “agony of collision”. The British Columbia Court of Appeal rejected that argument, upheld the trial judge’s finding that Ms. O’Donovan was not negligent, and dismissed the appeal:
[T]he trial judge did not err when he concluded that the [Ms. Donovan’s] actions met the standard of care of a reasonable person in the circumstances. Perfection is not demanded in emergent circumstances, as was well explained many years ago by this Court in Wood and Fraser v. Paget (1938), 53 B.C.R. 125 (CA), when it adopted this passage from Bywell Castle (1879), 4 P.D. 219 (CA):
For in my opinion the sound rule is, that a man in charge of a vessel is not to be held guilty of negligence, or as contributing to an accident, if in a sudden emergency caused by the default or negligence of another vessel, he does something which he might under the circumstances as known to him reasonably think proper; although those before whom the case comes for adjudication are, with a knowledge of all the facts, and with time to consider them, able to see that the course which he adopted was not in fact the best.
and this passage from Wallace v Bergius,  S.C. 205, at 210:
I think the driver of a motor car is in the same position as the master of a ship in this respect, that if at the last moment he reasonably judges that a collision is absolutely inevitable unless he does something, and if that something might avoid a collision, he acts perfectly reasonably in taking that course.
(Tubbs v. O'Donovan (1997), 43 BCLR (3d) 381 at para. 8 (CA)).
However, where drivers have time to react to the circumstances and fail to do so they may be 100% liable for accidents that result. For example, in Chambers v. Goertz, 2009 BCCA 358 the defendant was found 100% liable for striking pedestrians when proceeding when her vision was reduced by headlights of a taxi. As set out in the following reasoning of the trial judge (which was approved of by the Court of Appeal) it is not acceptable for a driver to persist driving at a relatively high speed when blinded by headlights:
She continued to drive when she could not see ahead into her lane beyond the high beams of the taxi. She was alerted by the taxi being stopped to the irregularity of the situation; she knew taxis pick up and drop off passengers. She did not expect people to be in the area but admitted that the presence of a taxi could signal the presence of people. Despite not being able to see the area into which she was driving in this irregular situation, she continued on without braking or sounding her horn. She took some precautions, taking her foot off the accelerator and covering the brake, but they were insufficient to prevent her from driving blindly beyond the high beams at a speed somewhere around the speed limit of 60 kph. She had a common law duty to drive with due care for the safety of others that she could reasonably have in her contemplation, and she breached that duty by driving forward at that speed when she could not see into the lane ahead, an action that makes a clear risk of harm foreseeable. She should have slowed to a speed that would have allowed her to approach the blind area with appropriate caution for whatever lay ahead, including the safety of persons who could foreseeably be at or near a taxi. By failing to do so, she breached her duty to drive with due care for the safety of others. That breach was a contributing cause of the accident. I find that Ms. Goertz was negligent.
(Chambers v. Goertz, 2009 BCCA 358 at para. 44 quoting the trial judge).
The agony of the collision doctrine will not be an excuse in all emergencies
In Lloyd v. Fox, 1991 CanLII 1007 (BCCA)two vehicles had been stopped in the middle of the highway so that their drivers could have a conversation. A motorcyclist, who knew that motorists in that area sometimes stopped in that manner to have conversations collided with the stopped vehicles. The trial judge found the motorcyclist 40% liable, partly because the evidence showed that when the motorcyclist first saw the vehicles stopped in the road he was shocked and did nothing for a brief time and then initially applied only his rear brake. The motorcyclist appealed the trial judgment saying that the trial judge failed to appreciate that the he was faced with the agony of the collision. Hinds J.A., writing for the majority of the British Columbia Court of Appeal, said the following regarding the agony of collision:
First, since the introduction of legislation pertaining to contributory negligence the application of the doctrine of agony of the collision has greatly diminished. Where, as here, the party invoking the doctrine is partly responsible for the sudden emergent situation arising, the doctrine is unlikely to prevail.
Second, when considering circumstances which could give rise to the application of the doctrine of agony of the collision, attention should be focused on whether the actions taken by the driver who seeks to raise the doctrine were the actions of a reasonably competent driver. If so, he or she may be absolved of fault; if not, the driver's fault should be apportioned pursuant to the Negligence Act, RSBC 1979, c. 298.
(Lloyd v. Fox, 1991 CanLII 1007 (BCCA)).
On the facts of that case, Hinds J.A. found that the agony of collision doctrine did not apply and that the motorcyclist did not act as a reasonably competent driver would have:
Such a driver would not have been shocked into inactivity and have done nothing for an appreciable length of time… a reasonably competent driver would have simultaneously applied both the rear brake and the front brake in a moderate manner in order to slow the motorcycle down and bring it to a stop prior to colliding with either of the [vehicles in the roadway]”:
(Lloyd v. Fox, 1991 CanLII 1007 (BCCA))
Hinds J.A. also commented that where the party seeking the benefit of the doctrine of agony of the collision is partly responsible for the creation of the emergency, the plea will seldom prevail. The Court of Appeal dismissed the appeal and upheld the finding of 40% contributory negligence on the motorcyclist.
Drivers who swerve in the agony of the collision
In Hall v. Pinette et al., 2004 BCSC 1367 the defendant truck driver swerved into the oncoming lane and collided head on with the plaintiff’s vehicle. The defendant argued that he acted reasonably in swerving into the oncoming lane because he had to do so to avoid running over a group of youths that emerged from the bushes on the side of the highway and threw eggs at his truck.
Barrow J. found as fact:
- that two or three youths did suddenly emerge from the bushes alongside the road and throw eggs at the defendant’s truck;
- The youths were not in the middle of the road, but near the fog line dividing the driving lane and the hard shoulder;
- the defendant, as a professional truck driver, was familiar with bend on which the accident occurred;
- the bend was relatively sharp;
- the defendant was aware that there had been several accidents on that corner;
- the defendant knew that the curve allowed neither him nor other motorists or pedestrians who might have been using that section of the highway any room for error;
- because it was Halloween night and the bend was near a town that there was a heightened prospect of children or youths being on or near the roadway;
- it was raining lightly and the road was wet at the time of the accident
- The defendant approached the corner where the accident occurred at a speed that was unreasonably fast in the circumstances.
Regarding the level of judgment expected of motorists in the “agony of collision”, Mr. Justice Barrow cited the following passage from Masztalar v. Wiens,  BCJ No 744 (SC):
[A] driver acting in an emergency created by another vehicle or by some extraneous fact cannot be expected to exercise nice judgment and prompt decision and mere errors of judgment in such circumstances may often be excusable.
(Hall at para. 53 citing Masztalar v. Wiens,  BCJ No 744 at para. 42 (SC))
Barrow J. found that “[e]ven allowing for allowing for the tolerances that must be allowed for in assessing the conduct of a driver faced with an emergency situation, there is no explanation for the defendant proceeding entirely into the oncoming lane, that is, or may be, consistent with no negligence”: Hall at para. 54. Further, Barrow J. found that at least part of the reason for the defendant going into the oncoming lane was the excessive speed with which he entered the corner. Thus, Barrow J. found that the defendant was negligent and 50% liable for the collision, the youths being equally liable.
In Jamieson v. Flint, 1996 CanLII 1757 (BCSC) the plaintiff, who was initially proceeding west on a road that came to an end at a T intersection, proceed through the stop sign at the T intersection and turned left to head south. Once she had completed her turn and was fully into her proper lane of travel heading south, the plaintiff was hit by the defendant. The defendant, who had been travelling north, had swerved into the oncoming lane in response to the plaintiff suddenly appearing across his path. Mr. Justice Boyle found that had the defendant simply maintained his course and not swerved to his left, the collision would not have occurred because the plaintiff would have crossed in front of the defendant before the defendant reached the intersection. Boyle J. found the defendant and the plaintiff equally liable. The plaintiff was responsible because she went through the stop sign and turned left (to head south) without proper pause. The defendant was liable because he was familiar with the intersection, knew that visibility was obscured, but approached at too great a speed to deal with emergencies that might develop. Boyle J. clearly stated that it was not negligent for the defendant to swerve, but only negligent to place himself in the emergency by speeding:
The swerve in itself was not negligent. It was misjudgment but being in circumstances allowing for misjudgment was negligent.
(Jamieson at para. 26).
In Stewart v. Murphy,  117 Nfld. & P.E.I.R. 45 (N.S.C.A.) the Nova Scotia Court of Appeal considered a head on collision between two drivers who swerved in the agony of collision. The plaintiff was driving north on a highway. The defendant Murphy was travelling south on that same highway, and the defendant Simmons was driving west on a road approaching that highway. The defendant Simmons reached the highway and turned right to head south on the highway, but did so without proper care and pulled out in front of the southbound defendant Murphy. In reaction to the situation, Murphy swerved leftwards (eastwards) into the oncoming (northbound) lane i.e. the lane the plaintiff was in. Seeing the plaintiff, Murphy then swerved further to the left (eastwards) such that he was on the shoulder on the east side of the road. Unfortunately, seeing the defendant Murphy approaching head on, the plaintiff (northbound) swerved right (eastwards) onto the shoulder on the east side of the road. The plaintiff and the defendant Murphy collided head on east shoulder of the highway. The vehicle of the defendant Simmons was left untouched, but the Court of Appeal held that the defendant Simmons was 100% liable for causing the collision by pulling out into the path of the defendant Murphy:
The approaching Murphy vehicle was there to be seen [by the defendant Simmons] and she did not see it. As a result of her [i.e. the defendant Simmons] failure to stop and yield the right of way to Murphy, she placed the defendant Murphy in the agony of collision and he took the only reasonable action open to him - that is, swerving to the left to avoid hitting Ms. Simmons.
Having thus committed himself to this course of action it would be unreasonable to require him [i.e. the defendant Murphy] to second guess the plaintiff Preston Stewart, as to the defensive action he would take himself to avoid the collision… I do not consider [the defendant Murphy’s] driving to be negligent nor did it contribute to the accident and resulting damages of the plaintiffs.
(Stewart v. Murphy,  117 Nfld & PEIR 45 (NSCA)).
In Minelli v. McDonald,  BCJ No 1279 (SC) (QL) a driver was found 65% liable for a collision that resulted when he swerved to avoid the pedestrian (who was found 35% liable) and collided with an oncoming vehicle. That finding was based on the fact that the driver was familiar with the fact that pedestrians walked on the right side of the highway and should have been going more slowly such that swerving would not have been necessary:
Although he was driving under the posted speed limit, the road was dark and narrow, and Mr. McDonald knew, or ought to have known, given the fact he frequently travelled the portion of Blue Mountain Road under consideration, that pedestrians walked on the right hand side of the highway because of the narrowness of the left hand shoulder and the absence of any sidewalks. He ought to have travelled at a rate of speed which would have enabled him to slow down or stop after he spotted a pedestrian on the highway and before he was so close that he necessarily had to swerve into oncoming traffic to avoid hitting the pedestrian. He was negligent in failing to do so.
(Minelli v. McDonald,  BCJ No 1279 (SC) (QL)).
In Aberdeen v. Township of Langley, Zanatta, Cassels, 2007 BCSC 993 the plaintiff cyclist went off the road after swerving to avoid an oncoming vehicle. The defendant argued that the plaintiff should be found contributorily negligent and that the court should draw an inference of negligence from plaintiff going off the road. The court held that any inference of negligence that might arise was clearly rebutted by the explanation that the plaintiff had to swerve to avoid the oncoming vehicle, and held that the plaintiff was not contributorily negligent.
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