Written By: Jonathan Farine and Ruth Aruliah, Summer Student
Imagine you are driving and are suddenly faced with an oncoming car or another emergency on the road. You swerve to avoid an accident but end up in a collision with another car instead. Can you be found legally responsible for the injuries caused in this collision?
The case law has developed a doctrine called “Agony of Collision”, which is meant to protect drivers from legal liability in emergency situations, provided that they acted reasonably. The doctrine recognizes that in a sudden and unexpected emergency, your reaction can be shielded from liability even if it might not have been the best response.
What is considered a reasonably competent driver?
One of the first cases to summarize the “Agony of Collision” doctrine, Gerbrandt v. Deleeuw  B.C.J. No. 1022, stated that the law does not expect the same care from a driver in an emergency situation as it does from a driver in normal circumstances. Some leeway will be given if a driver reacts imperfectly to an emergency situation. However, the doctrine will not shield drivers who have sufficient opportunity to avoid a collision and fail to do so. In Holizki Estate v. Alberta (Public Trustee), 2008 ABQB 716, the court held that if a “driver anticipates a dangerous situation and has sufficient opportunity to apply his brakes or take other evasive action to avoid the collision, but does not, 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 those drivers who do react reasonably in an attempt to avoid when first alerted to a dangerous situation.
What can be considered a sudden and unexpected emergency?
In Bern v. Jung, 2010 BCSC 730, the Plaintiff was cycling down an entrance ramp and lost control of his bicycle when the Defendant’s car unexpectedly drove towards him in the wrong lane. The Plaintiff had to make a split-second decision and apply his brakes forcefully, resulting in him falling and sustaining injuries. The Defendant argued that the Plaintiff was responsible because he was not exercising enough caution as he rode down the entrance ramp.
The Plaintiff argued that he did not anticipate 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 be following the proper direction. As a result, the Plaintiff was considered to have acted in “Agony of Collision” and was shielded from liability.
Considerations for Asserting the Doctrine
The party asserting the defence bears the onus of proving that the danger was imminent and that they were forced to react in the spur of the moment to avoid harm. To increase the likelihood of a successful defence, it is important to highlight all evidence that the danger was unexpected, and that the driver reacted immediately to that sudden danger. Below are scenarios from real cases and the court’s determination of liability.
- The Defendant’s vehicle began weaving into the oncoming lane. When the Plaintiff noticed this, she braked but did not turn her wheel to attempt 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 turning may have been a more effective attempt at avoidance. (Gerbrandt v. Deleeuw,  B.C.J. No. 1022)
- The Plaintiff motorcyclist made an unsafe U-turn in front of Defendant vehicle, who drove into the motorcycle. The Defendant gave evidence that he first saw the motorcycle positioned for a three-point turn on the shoulder of the road. The motorcycle was about 300-600 feet away at that point. The court determined that the Defendant was not in the “Agony of Collision” as the Defendant had time to react and did not reduce their speed or exercise a more vigilant lookout. The Defendant was found to be 25% liable and the Plaintiff was found to be 75% liable. (Kolberg v. Gileff, 2007 BCSC 1662)
- The Defendant truck drivers were fully stopped and having a conversation in opposing lanes, blocking the entire roadway. The Plaintiff motorcyclist first saw the tops of the trucks blocking the roadway. After a brief delay, he applied the rear brake of the motorcycle and continued toward the trucks. The motorcyclists then forcefully applied both breaks before the impact with one of the trucks. The Court held that the motorcyclist was not in the “Agony of Collision” as a reasonably competent rider would not have braked as the Plaintiff did and would now have been “shocked into inactivity and have done nothing for an appreciable length of time.” The Plaintiff was found 40% liable. (Lloyd v. Fox, 1991 CarswellBC 161)