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Agony of the moment

Stuart v Walsh [2012] NSWCA 186. Tobias AJA.

61 It was in the context of Dr Walsh's over-reaction submission that reference should be made to the appellants' submissions based on their "agony of the moment" contention.

Reliance was placed on a passage from the judgment of Street CJ in Leishman v Thomas (1957) 75 WN(NSW) 173 at 175 where the Chief Justice considered the question whether a defendant may rely on the principle of the "agony of the moment" in answer to a claim that he acted negligently towards another. His Honour said:

 "This so called principle of acting in the 'agony of the moment' is merely an application of the ordinary rule for ascertaining whether or not the conduct of any party has been negligent by looking to all the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of those circumstances, would not have behaved.

"It is a circumstance, and one possibly of great importance, that the defendant, charged with negligence, may have been forced to act in a sudden crisis or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else.

"The jury are required to judge his conduct in the light of the happenings of the moment, and a man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so-called 'agony of the moment', he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise."

62 This passage from Leishman was quoted with approval by Stein JA, with whom Meagher and Beazley JJA agreed, in Abdallah v Newton (1998) 28 MVR 364 at 365-366. See also Antypas v McKeon [2001] NSWCA 417; (2001) 35 MVR 121 at [48], [49] per Ipp AJA with whom Hodgson JA and Rolf AJA agreedByrnes v Snare (1986) 4 MVR 97 at 99 per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ agreeing.

 63 Like the position in Abdallah, Mr Stuart found himself in a situation which was not of his making. He was driving his truck at 80 kph when, without warning, he suddenly observed between 65 and 90 metres in front of him a cyclist in the breakdown lane look right over his shoulder and then immediately turn 90 degrees onto the carriageway and, at least potentially, into the path of his vehicle.

To adopt and adapt the observations of Street CJ in Leishman, Mr Stuart was forced to react to a sudden, unexpected and unheralded scenario when he observed a cyclist, suddenly and without warning, move into his path a relatively short distance in front of him. He may have assumed that the cyclist intended to proceed to the other side of the carriageway but he did not know at what speed. He did the obvious thing and immediately applied his brakes. It was never suggested to him that this was an inappropriate thing to do. Importantly, he responded to the potentially dangerous situation created by Dr Walsh as soon as it occurred: cf Vale v Eggins at [14] and [17].













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