On 5 November 2021, The High Court of Australia refused an Application for Special Leave from the ACT Court of Appeal decision of Reardon v Seselja  ACTCA 4.
HWL Ebsworth acted for Insurance Australia Group t/as NRMA Insurance, as the Respondents to the Special Leave Application.
The appeal focussed on whether the ACT Court of Appeal erred in finding that the respondent’s failure to observe the appellant’s vehicle behind him amounted to a breach of duty of care, and whether that breach caused the plaintiff’s harm.
The First Respondent, 17 years old, was driving his siblings home from the movies at night, when the car in front of him came to an abrupt stop. The occupants of that vehicle got out, opened the door of the First Respondent’s vehicle and started attacking his passenger.
Terrified by the attack, the First Respondent reversed approximately 7 metres and collided with the vehicle behind him.
The driver of that vehicle, Sophia Seselja, made a claim in negligence against the First Respondent seeking compensation for her injuries.
The central issue for the ACT Supreme Court was whether the First Respondent’s actions, in attempting to escape the attackers and accidentally colliding with the Appellant’s vehicle, met the standard of care of a reasonable driver in those circumstances.
DECISION AT FIRST INSTANCE – SESELJA V REARDON  ACTSC 167
The decision at first instance was that the First Respondent was, in fact, negligent. Crowe AJ did not accept that the First Respondent had driven reasonably ‘in the agony of the moment’ and that he should have observed and avoided the Appellant’s car behind him as he reversed.
DECISION ON APPEAL – REARDON V SESELJA  ACTCA 4
The Respondents appealed to Full Court of the ACT Court of Appeal and, on 11 March 2021, the trial judge’s findings were overturned.
In a joint judgment, Justices Burns and Perry held that a reasonable person would not have foreseen that a violent attack would occur, or that they would or should carefully check their surroundings for an escape route before the assailants emerged from the vehicle.
The majority determined that a reasonably prudent person in the position of the First Respondent was not required to check their rear-view mirror before reversing ‘in the agony of the moment’ and found in favour of the Respondents.
Justice Elkaim dissented, and would have dismissed the appeal.
In her Application for Special Leave, the Appellant urged the High Court to grant leave on the basis that the Court of Appeal was not in a better position than the trial judge to consider the First Respondent’s behaviour and state of mind at the time the accident. The High Court was unpersuaded by that argument.
The High Court turned its attention to the events that intervened between the time the First Respondent’s failure to observe the vehicle behind and the time of the vicious attack by the two assailants. The First Respondent’s written submission was that the failure to observe was not causative of the harm and that it was still reasonable for him to have reversed to escape the attack without again checking his rear-view mirror.
The Appellant also submitted that the First Respondent had not so lost control of his faculties, and did not execute an emergency, uncontrolled, reflex response, as to equate to taking action in the ‘agony of the moment’. This line of reasoning was not run in the trial, and was not supported by either of the leading authorities on agony of the moment incidents (Leishman v Thomas (1957) 75 WN (NSW) 173; Abdallah v Newton  NSWSC 547).
The High Court concluded that the matter did not raise an issue of principle and dismissed the Application.
WHAT IS THE LAW NOW?
Whilst still relatively rare, agony of the moment is still an important concept in determining a defendant’s liability. It can be raised in any claim for personal injury arising from an emergency situation, not merely motor vehicle accident claims.
The most recent authoritative decision on agony of the moment remains Reardon v Seselja  ACTCA 4. That decision confirms two important issues:
Agony of the moment is not a defence to a claim in negligence, but is a means by which the court determines if the defendant has met the standard of care. A defendant to any claim arising in negligence need only take reasonable care based on the circumstances with which they are faced. A close examination of all the pertinent facts, as close in time to the events as possible, should confirm the standard of care that applied to the defendant and whether their actions were reasonable.
The negligence must be contemporaneously linked to, and causative of, the harm. A duty of care does not exist in a vacuum. An earlier act of negligence, isolated from the extraordinary events which precipitated the accident, is irrelevant to establishing liability on the part of the defendant.
This article was written by Sarah McJannett, Partner and Aayushee Sharma, Solicitor.