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Imagine you are driving and are suddenly confronted with an oncoming car or other emergency on the road. You swerve to avoid an accident but end up colliding with another car instead. Can you be found legally responsible for the injuries caused in this collision?
Case law has developed a doctrine called “Agony of Collision”, which aims to protect drivers from legal liability in emergency situations, provided they acted reasonably. The doctrine recognizes that in the event of a sudden and unexpected emergency, your reaction may be immune from liability even though it may not have been the best response.
What is a reasonably competent driver?
One of the first cases to sum up the “Agony of Collision” doctrine, Gerbrandt versus Deleeuw  BCJ No. 1022, said the law does not expect the same care from a driver in an emergency situation as from a driver under normal circumstances. Some leeway will be given if a driver reacts imperfectly to an emergency situation. However, the doctrine will not protect drivers who have sufficient opportunities to avoid a collision and fail to do so. In Holizki Estate c. Alberta (public trustee), 2008 ABQB 716, the court held that if a “driver anticipates a dangerous situation and has sufficient opportunity to apply brakes or take other evasive action to avoid the collision, but fails to do so, then the doctrine is not applicable”. The doctrine will not protect drivers who are shocked into inactivity or have a delayed reaction to an emergency situation, but it will protect drivers who react reasonably to attempt to avoid when first alerted to an emergency. a dangerous situation.
What can be considered a sudden and unexpected emergency?
In Bern v. Jung, 2010 BCSC 730, the plaintiff was cycling down a ramp and lost control of his bike when the defendant’s car unexpectedly veered towards him in the wrong lane. The Claimant had to make a split-second decision and forcefully apply his brakes, causing him to fall and injure himself. The defendant argued that the plaintiff was liable because he failed to exercise sufficient caution when descending the ramp.
The plaintiff argued that he had not anticipated that a driver would be heading in the wrong direction, the surprise of which led the plaintiff to lose control of his bicycle. The court agreed and added that the plaintiff was entitled to assume that other people would follow in the right direction. Accordingly, the plaintiff was considered to have acted in “Agony of Collision” and was released from all liability.
Considerations for Affirming Doctrine
The onus is on the party arguing the defense to prove that the danger was imminent and that they were forced to act on the spur of the moment to avoid harm. To increase the likelihood of a successful defense, it is important to highlight all evidence that the danger was unexpected and that the driver reacted immediately to this sudden danger. Below are scenarios from real cases and the court’s determination of liability.
- The defendant’s vehicle began to weave into the oncoming lane. When the plaintiff noticed it, she braked but did not turn her steering wheel to try to avoid it. The vehicles collided in the plaintiff’s lane. The doctrine applied and the defendant was found 100% liable because it was reasonable for the plaintiff to brake in response to the unexpected danger, regardless of whether the turn may have been a more effective avoidance attempt. (Gerbrandt versus Deleeuw,  BCJ No. 1022)
- The plaintiff motorcyclist made a dangerous U-turn in front of the defendant vehicle, which struck the motorcycle. The defendant testified that he first saw the motorcycle positioned for a three-point turn on the shoulder of the road. The motorcycle was at about 300 to 600 feet at the time. The court determined that the defendant was not in “collision agony” because the defendant had time to react and did not reduce his speed or exercise a more vigilant watch. The defendant was found to be 25% liable and the plaintiff 75%. (Kolberg vs. Gileff2007 BCSC 1662)
- The defendant truckers were brought to a full stop and had a conversation in opposite lanes, blocking the entire roadway. The applicant motorcyclist first saw the tops of the trucks obstructing the roadway. After a brief delay, he applied the motorcycle’s rear brake and continued towards the trucks. The motorcyclists then forcefully applied both brakes before impact with one of the trucks. The Court ruled that the motorcyclist was not in “collision agony”, as a reasonably competent motorcyclist would not have braked as the plaintiff did and would now have been “shocked to inactivity and would have done nothing for an appreciable period of time”. The plaintiff was found to be 40% liable. (Lloyd vs. Fox1991 Carswell BC 161)
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.
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