Agony of Collision
This post will identify a number of cases that have plead the doctrine of agony of collision, including a few 2018 decisions.
Let’s begin by asking the question: What is the agony of collision doctrine?
A 2018 decision referenced as Owen v. Folster, 2018 BCSC 143 describes the doctrine of agony as follows:
That doctrine recognizes that if an emergency situation is created through a driver’s negligence, then another person’s response to the emergency is excused, even if it was not the best response in the circumstances: Davies v. Elston, 2014 BCSC 2435 (CanLII)at paras. 216-217.
In Dorsett v. Sahib, 2018 BCSC 1884 the Court interpreted the doctrine of collision as follows:
The doctrine applies where a person must respond to an emergency situation created through a driver’s negligence and operates to excuse the responding person’s response if it was not the best response in the circumstances, recognizing that it is not fair to insist on a better response that becomes apparent on subsequent reflection.
Here are a few key tips you should be aware of as taken from multiple cases:
- If there is a claim of agony being made, it must be pled in your Notice of Civil Claim; and if it is not, consideration should be made to amend the pleadings;
- You may not be able to claim agony of collision if you have not properly plead this doctrine of law;
- Where you question the response of a driver’s or cyclist’s response to an incident, ask yourself whether agony of collision could be claimed;
- Where a driver does not stop a vehicle on time, or veer’s off course – this may not be deemed negligence if agony of collision is to blame;
- A considering factor for agony of collision will be to ask whether the driver or cyclist suddenly finds him/herself in a place of danger and did not have time to react in time to avoid Imminent danger;
- You need to establish proof of the emergency situation and that the person had little other choice in responding as they did.
- A reckless driver may be negligent in incidents involving cyclists even if a collision or impact did not occur. Eg: a driver driving down the wrong lane of traffic, creates a cyclist to fall off the bike after being startled.
- The party claiming the doctrine has the onus of proving that they met the standard of care of a reasonable person in the circumstances they found themselves in and there was little choice to respond in any other way.
- If the doctrine does not apply, the Negligence Act, R.S.B.C. 1979, c. 298 will be applied to determine if there is contributory negligence.
- Davies v. Elston, 2014 BCSC 2435 (CanLII)
 The “agony of collision” doctrine was summarized in Gerbrandt v. Deleeuw  B.C.J. No. 1022 at paras. 10-11 where Hunter J. stated as follows:
 An often quoted summary of the law concerning the agony of collision is found in an old text, Huddy on Automobiles, 7th Ed., page 471 and page 335 (this passage is relied upon by the Saskatchewan Court of Appeal in English v. North Star Oil Limited 1941 CanLII 161 (SK CA),  3 W.W.R. 622 (Sask. C.A.) and Reineke v. Weisgerber 1974 CanLII 945 (SK QB),  3 W.W.R. 97 (Sask. Q.B.)):
Under circumstances of imminent danger an attempt to avoid a collision by turning one’s course instead of stopping the vehicle is not necessarily negligence. Or an attempt to stop when a turn would have been a more effective method of avoiding the collision is not necessarily negligence . . . one who suddenly finds himself in a place of danger and is required to consider the best means that may be adopted to evade the impending danger is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.
- Gill v. C.P.R.1973 CanLII 2 (SCC),  4 W.W.R. 593:
It is trite law that, faced with a sudden emergency 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
- Bern v. Jung, 2010 BCSC 730 (CanLII) 14
 Mr. Bern lost control of his bicycle and fell because of the sudden and unexpected presence of Mr. Jung’s vehicle travelling in the wrong direction. Mr. Bern was forced to act quickly and to apply his brakes forcefully. He essentially acted in the agony of the collision and should not be found contributorily negligent because he did so.
The authorities applying this doctrine require that there be proof of urgency and limited choice: Comeau v. Doucet(1980), 32 N.B.R. (2d) 145 at para. 18 (C.A.); LaPlante v. LaPlante (1992), 1992 CanLII 8506 (BC SC), 93 D.L.R. (4th) 249 (B.C.S.C.); and Noble et al v. Beroud and Hogan (1985), 37 Man.R. (2d) 313 at paras. 20-21 (Q.B.), aff’d (1986), 42 Man.R. (2d) 25 (C.A.).
Where a person is faced with an emergency and is forced to react quickly to a situation created by the negligence of another person, he is not held to the same standard of care as a person in a non-emergency situation. This type of case is articulated by Lewis Klar, Q.C., Tort Law, 3d ed. (Toronto: Thomson Carswell, 2003) at 319:
The sudden emergency, “agony of collision”, or “agony of the moment” doctrine, illustrates the basic proposition that the standard of care is that degree of care which would have been taken by the reasonable person in like circumstances. Since negligence law does not guarantee the safety of others, but only assures them that they will be compensated for injuries caused by unreasonable conduct, errors in judgment which do not qualify as being negligent are permitted. The significance of the sudden emergency doctrine is that it will permit a person who is faced with a sudden emergency to make a choice which would not have been acceptable in a non-emergency situation, and in retrospect, was not the best choice of those available. Since this will, in some cases, throw the unfortunate consequences of the emergency onto the shoulders of an innocent victim, the courts will not lightly recognize the sudden emergency doctrine as a defence in a negligence suit.… [T]he emergency must have been one which could not have reasonably been anticipated.
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, R.S.B.C. 1979, c. 298.
The doctrine of agony of collision does not deal with the cause of or explanation for an accident; rather, it is a summary way of expressing the standard of reasonable care required of a driver faced with an emergency.
In Dorsett v. Sahib, 2018 BCSC 1884 a Defendant vehicle entered the opposite lane of traffic flipping upside down on top of a vehicle. A further vehicle travelling behind the stopped vehicle was not able to stop in time, creating a further impact.
The doctrine applies where a person must respond to an emergency situation created through a driver’s negligence and operates to excuse the responding person’s response if it was not the best response in the circumstances, recognizing that it is not fair to insist on a better response that becomes apparent on subsequent reflection. See also Canadian Pacific Ltd, v. Gill et al.,  SCR 654,  4 W.W.R. 593; Gerbrandt v. Deleeuw,  B.C.J. No. 1022; and Davies v. Elson, 2014 BCSC 2435.
In this case, the doctrine of agony of collision was not plead by the parties and therefore the court was not willing to apply the doctrine. Haynes v. Haynes, 2016 BCSC 416 at paras. 47-48 and 51, aff’d on this point, rev’d on other grounds: Haynes v. Haynes, 2017 BCCA 131 at para 10, leave to appeal to S.C.C. ref’d  S.C.C.A. No. 170.
The Court needed to review the standard of care of both drivers. It was determined that the standard of care was met by both drivers in the circumstance and the Defendant who flipped his vehicle over was found fully liable for this collision.
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