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Acting in the “Agony of the Moment”

Hauer & Co. > Contributory Negligence  > Acting in the “Agony of the Moment”

Acting in the “Agony of the Moment”

In a recent decision of Bye v. Newman, 2017 BCSC 1718, the plaintiff, a 31-year-old carpenter, suffered injuries when he was involved in a collision with defendant’s all-terrain vehicle while the plaintiff was riding his dirt bike.

The Supreme Court of British Columbia held that the defendant breached the standard of care expected of ordinary, reasonable, and prudent person by driving his ATV too quickly, and by crossing the centre of road into the oncoming side around a blind corner. The Defendant was 100 per cent liable. To extent that plaintiff’s decision to turn to right contributed to his injuries, he acted in an “agony of the moment”. The plaintiff had little time to address the risk the defendant’s negligence had created, and it was not reasonable to use considered perfection of hindsight as measure of his response. While it turned out that the plaintiff’s turn to right was too sharp for road and conditions, this did not raise the plaintiff’s conduct to level of contributory negligence.

When addressing whether the plaintiff was negligent the Court held:

85      The law does not expect perfection from a person put in danger by another’s negligence. Where a person must respond immediately to a dangerous situation, the court will not require them to take the safest possible course in order to avoid liability. Instead, as Freedman C.J.M. wrote in Neufeld v. Landry, [1974] M.J. No. 68 (Man. C.A.) wrote at para. 4:

4 . . . The conduct of the plaintiff driver must be assessed in the light of the crisis that was looming up before her. If in the “agony of the moment” the evasive action she took may not have been as good as some other course of action she might have taken – a doubtful matter at best – we would not characterize her conduct as amounting to contributory negligence. It was the defendant who created the emergency which led to the accident. It does not lie in his mouth to be minutely critical of the reactive conduct of the plaintiff whose safety he has imperilled by his negligence.

As Savage J.A., writing for our Court of Appeal, noted in Graham v. Carson, 2015 BCCA 310 (B.C. C.A.) at para. 15, this principle is not restricted to vehicles travelling at highway speeds, but can apply when, on the facts, a person had to respond to another’s negligence without the time to properly consider their reaction.

86      I find that, to the extent that Mr. Bye’s decision to turn contributed to his injuries, he acted in the “agony of the moment”; Mr. Bye had little time to address the risk Mr. Newman’s negligence had created, and it is not reasonable to use the considered perfection of hindsight as a measure of his response.

As a result of the accident the plaintiff suffered a fracture to his neck and multiple fractures to his legs, as well as other injuries. Although plaintiff was rushed to hospital, his left leg could not be repaired, and was amputated at the knee. Once the plaintiff recovered from the amputation the plaintiff was fitted with a prosthetic.

At the time of the accident plaintiff was a young man who had enjoyed various physical recreational pursuits. He testified that, before the accident, he enjoyed dirt biking, boating, hunting, fishing, hiking, and swimming, and that his injuries had either cut off, or severely limited his enjoyment of these activities. The injuries from the accident changed plaintiff’s life dramatically and permanently. He now suffered from daily pain and fatigue as a result of the amputation, and was permanently disabled from returning to carpentry work, many of his recreational activities, and his interactions with his young son were negatively impacted. Plaintiff would continue to face difficulties for the rest of his life. Choi J. awarded plaintiff general damages in the amount of $220,000, as well as $1,200,000 for loss of future earning capacity, $1,100,000 for cost of future care, and $125,000 for loss of housekeeping capacity.

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