Imagine you are driving your siblings home from the movies one night and the car in front of you unexpectedly starts braking and accelerating before screeching to a halt in the middle of the road.
You brake heavily and stop behind the vehicle, with no idea about what is going to happen next.
Now imagine the occupants of the car in front get out, run towards your car, wrench open the passenger door and start attacking your passenger.
What do you do?
This exact situation confronted a teenage driver on 13 July 2015 in Canberra. Quite understandably, the driver attempted to escape from the attack. He couldn’t drive forward, because he was cut off by the vehicle in front. He had to reverse. With one of the attackers still clinging to and assaulting the front seat passenger, he reversed 7 metres and bumped the car behind. The attackers then finally let go and fled the scene.
These facts came before the ACT Supreme Court when the female driver of the last car in line, Sophia Seselja, made a claim in negligence against the driver who was being attacked.
The central issue for the ACT Supreme Court was whether the defendant driver was negligent when he drove into her car whilst attempting to escape from his attackers.
Decision at first instance – Seselja v Reardon  ACTSC 167
The decision at first instance was that the defendant driver was in fact negligent. Crowe AJ did not accept that the driver had driven reasonably ‘in the agony of the moment’ and that he should have observed and avoided the plaintiff’s car behind him as he reversed.
Decision on appeal – Reardon v Seselja  ACTCA 4
The defendants appealed to the Full Court of the ACT Court of Appeal and in a decision handed down on 11 March 2021, the trial judge’s findings were overturned.
In a joint judgment, Justices Burns and Perry held that a reasonable person in the position of the defendant would not have carefully checked their surroundings and searched for an escape before the assailants emerged from the vehicle. Their Honours held that a reasonable person would not have foreseen that a violent attack would occur that required an immediate escape.
The Court of Appeal determined that even a reasonably prudent person in the position of the defendant would not have checked their rear-view mirror before reversing ‘in the agony of the moment’ such that the accident could have been avoided if reasonable care had been taken. Judgment was entered for the defendant and costs awarded against the plaintiff.
Justice Elkaim dissented and would have dismissed the appeal.
Agony of the moment is not a defence to a claim in negligence. It is a factor relevant to determining the standard of care expected of drivers who have caused a collision.
The earlier authorities of Leishman v Thomas (1957) 75 WN (NSW) 173 and Abdallah v Newton (1998) 28 MVR 364 emphasise that the court must consider the circumstances faced by the driver who is forced to act ‘in the agony of the moment’, without the benefit of hindsight. There were striking similarities between the facts of Abdallah and the present case, which also involved a person approaching the defendant driver’s vehicle for the purposes of an attack when the defendant drove off to escape – colliding with the attacker’s car.
What did emerge during the appeal was that there will certainly be circumstances in which a driver, faced with a threat or emergency, must weigh up the consequences of their actions in driving at, what would otherwise fall, below the standard of care expected of prudent road users. However, the Court of Appeal was not prepared to be drawn into providing examples of when the agony of the moment could not be relied upon to excuse a collision and ultimately each case will turn on its own facts.
HWL Ebsworth Lawyers were the instructing solicitors in the decisions of Seselja v Reardon  ACTSC 167 and Reardon v Seselja  ACTCA 4.
This article was written by Sarah McJannett, Partner, Jessica Smith, Associate and Aayushee Sharma, Solicitor.