In the case Hildebrand v. Musseau 2010 BCSC 1022 (“Hildebrand”), judgment released July 21, 2010, the issue “agony of the moment” was considered. The cause of action in Hildebrand arose when the Plaintiff, who was riding dirt bikes side-by-side with a friend along the right-hand side of the road, was forced to take evasive action after noticing the Defendant driving towards him on the wrong side of the road. The Plaintiff was struck by the Defendant’s truck as he cut in front of him in an attempt to avoid the collision.

The Plaintiff argued that although his decision to cut across the road in front of the Defendant’s truck ultimately led to the accident, he was entitled to rely on the “agony of the moment” rule described in the case of Wormell v. Hagen, 2009 BCSC 1166 (“Wormell”). In Wormell, the Court referred to the common law rule that individuals who find themselves in “emergency situations” are not required to conform perfectly to the usual standard of care. The “agony of the moment” defence to contributory negligence recognizes that it is not always possible to respond with perfect clarity of thought in highly stressful situations. This rule is premised on the idea that, in general, the standard of care in a given situation is only that of a “reasonable” person.

In Walls v. Mussens Ltd. et al (1969), 11 D.L.R. (3d) 245 at 247-48 (N.B.C.A.), the Court referenced the historical origins of the “agony of the moment” rule:

The rule although applied originally in Admiralty cases, now has general application where danger to life and limb or to property is brought about by the negligence of the defendant: see The "Bywell Castle" (1879), L.R. 4 P.D. 219 per Brett, L.J., at p. 226, and Cotton, L.J., at p. 228; Rowan v. Toronto Ry. Co. (1899) 29 S.C.R. 717, and Tatisich v. Edwards, [1931] 2 D.L.R. 521, [1931] S.C.R. 167.

The test to be applied in circumstances such as those as in the case at bar is, in my opinion, not whether the plaintiff exercised a careful and prudent judgment in doing what he did, but whether what he did was something an ordinarily prudent man might reasonably have done under the stress of the emergency.

However, after surveying the principles behind the “agony of the moment” defence, the Court in Hildebrand held that it did not apply in the particular circumstances of the case. The Court found that the evasive action taken in the emergency context was necessary only because the Plaintiff was negligently riding alongside another dirt bike. The Court held at para. 79 that “[a]lthough it was the defendant’s negligent act in driving on the wrong side of the road that caused the plaintiff to take the evasive action that he took, it was his decision to ride side-by-side with Mr. Gaven that put the plaintiff in the situation in which he found himself”.

Because the Plaintiff’s initial negligence was actually the cause of the “agonizing moment” within which the evasive action was performed, any reliance on the defence was precluded.

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