Drivers faced with suddenly hazardous situations must make split-second, adrenaline-fuelled, and potentially life-altering decisions to protect themselves and their passengers. When accidents occur, the driver who created the hazard is generally liable. However, the driver who must avoid the hazard may also be partially liable, depending on the evasive manoeuvres they took.

To determine whether a driver failed to take proper evasive manoeuvres to avoid an accident, courts developed the doctrine of Agony of Collision (the “Agony Doctrine”). The Agony Doctrine provides that drivers faced with an emergency, through no fault of their own, will be held to a lower standard of care than other drivers. For example, if a moose darts onto a highway, leaving a driver with one to two seconds to react, that driver may not be liable for abruptly turning right and sideswiping the car next to them. However, the Agony Doctrine would not apply if the driver had ample time to see the moose and take proper evasive manoeuvres.

The Agony Doctrine is frequently raised but rarely succeeds, as drivers often have some time to identify and attempt to evade a hazard. In other words, the Agony Doctrine depends on whether an emergency truly exists and how a reasonable person would react to that emergency. A 2024 Ontario Court of Appeal decision highlights the importance of contextualizing an emergency when invoking the Agony Doctrine.

Morales v. Laguardia

The plaintiff in Morales was a passenger in a vehicle operated by the defendant, Laguardia. Laguardia’s vehicle suffered a head-on collision with a vehicle operated by the co-defendant, Franchetto, while driving on a highway in Ontario where the posted speed limit was 80 km/h (the “Accident”).

Laguardia fell asleep at the wheel, causing his vehicle to veer into the oncoming lane of traffic. After spotting Laguardia’s vehicle enter his lane, Franchetto had about five seconds to avoid the accident. Both drivers were travelling above the speed limit: Laguardia was driving at approximately 102 km/h, and Franchetto was travelling at about 89 km/h. When Laguardia’s vehicle first veered into Franchetto’s lane, Franchetto decided to steer onto the shoulder of the road, following the vehicle ahead of him. It was only after seeing Laguardia’s vehicle continue to veer towards the shoulder without slowing down that Franchetto decided to slam on his brakes. Franchetto’s vehicle then collided head-on with Laguardia’s vehicle.

Franchetto brought an application for summary dismissal, seeking to have the plaintiff’s lawsuit against him dismissed. He argued that Laguardia was 100% liable for the accident. To defeat the application, Laguardia led expert evidence establishing that the accident would not have happened if Franchetto had simply hit the brakes when he first saw Laguardia’s vehicle veer into his lane. Franchetto invoked the Agony Doctrine, contending that he acted reasonably given the time available. The lower court applied the Agony Doctrine and dismissed the action against Franchetto.

The Court of Appeal upheld the lower court’s decision. It agreed that Franchetto had little time to think, acted immediately to try to avoid the accident, and engaged in a series of reasonable, albeit ineffective, evasive manoeuvres. The Court of Appeal began its analysis by reiterating the longstanding Agony Doctrine established by the Supreme Court of Canada in Gill v. Canadian Pacific Railway. The Agony Doctrine stipulates that when a driver is faced with a sudden emergency created through no fault of their own, they will be held to a more relaxed standard of care than ordinary drivers. Calm people in a courtroom years later will not be allowed to blame a driver for making a potentially wrong decision when that driver had only seconds to decide.

The Court of Appeal found it reasonable for Franchetto to believe that moving onto the shoulder would give Laguardia room to correct his course; it was not unreasonable for Franchetto to assume that Laguardia was conscious behind the wheel. Despite travelling over the posted speed limit, there was no evidence that Franchetto’s speed contributed to his failure to avoid the accident. He was also travelling slower than Laguardia. Upon realizing that Laguardia was not going to correct his course, Franchetto tried to avoid the accident by swerving and slamming on the brakes. This sequence, the Court of Appeal held, was reasonable in the circumstances. Higher speeds involve greater dangers and less time to think. While slamming the brakes might have been the only reasonable course of action at lower speeds, the Court of Appeal emphasized the importance of contextualizing Franchetto’s decisions within the very real emergency before him.

Takeaways

While this case was decided in Ontario, the Agony Doctrine is applied in all Canadian jurisdictions. The doctrine is often raised when a driver feels they had no reasonable opportunity to avoid a car accident. In Morales, despite Franchetto having around five seconds to react, he was absolved of any liability. The Court of Appeal’s decision in Morales underscores the importance of considering the context in which a car accident occurs when assessing whether certain evasive manoeuvres were reasonable. Moreover, it highlights that courts will be more sympathetic to a driver’s efforts to avoid an accident when the hazard created by the other driver is significant and when that hazard is unfolding at higher speeds.

Liability issues in car accident lawsuits can be complex. For assistance, please contact David Di Gianvitorrio in Calgary, Christine Pratt in Edmonton, or any member of Field Law’s Insurance Group.

Link to decision: Morales v. Laguardia, 2024 ONCA 869