Australia: A reasonable response in the "agony of the moment" - considering contributory negligence

Curwoods Case Note
Last Updated: 30 June 2012
Article by Elizabeth Doan

Stuart v Walsh [2012] NSWCA 186

Court of Appeal1

In Brief

  • District Court findings of negligence and assessment of contributory negligence at ten percent overturned by Court of Appeal to verdict and judgment for the appellants.
  • When answering to an allegation of negligence, the question is whether the defendant responded reasonably to circumstances with which they were presented and not whether there was an alternative course of action.


At approximately 4 pm on 28 May 2007, the respondent, Dr Walsh, who was 73 years of age at the time of accident, was riding his bicycle and was struck and injured by a truck owned by the second appellant. The truck was driven by the first appellant, Mr Stuart, an employee of the second appellant. Allianz Australia Insurance Limited was the CTP insurer of the truck.

Dr Walsh was riding in the emergency breakdown lane when he looked over his right shoulder and saw Mr Stuart driving his truck between 65-90 metres behind him. Dr Walsh made a 90 degree right-hand turn and proceeded to cross 2 lanes of traffic with the intention of alighting from his bike and walking his bicycle over the median strip for the purpose of re-mounting and proceeding on his journey.

Mr Stuart was driving at 80 km/h in the right-hand lane and intended to change lanes to the left-hand lane. He had commenced that manoeuvre when he first saw Dr Walsh riding his bicycle in the breakdown lane. Dr Walsh proceeded out from the breakdown lane onto the carriage way. Mr Stuart took evasive action, braked heavily and tried to veer to the right. The truck collided with the rear of Dr Walsh's bicycle.

District Court proceedings

After reviewing evidence given by Dr Walsh, Mr Stuart, their respective expert traffic engineers, and 3 lay witnesses, on 31 March 2011, his Honour Judge North found Mr Stuart liable in negligence and, after assessing Dr Walsh's contributory negligence at ten percent, entered a judgment and verdict in his favour in the sum of $344,352.96 plus costs.

His Honour concluded that Mr Stuart firstly, failed in his duty to keep a proper look out, and secondly, erroneously veered to the right and braked heavily, rather than continuing in the left-hand lane of the carriageway having observed the movement of Dr Walsh's bicycle across the carriageway towards the median strip.

Court of Appeal proceedings

The Appeal was heard on 15 May 2012 by Chief Justice Bathurst, Justice Basten and Justice Tobias. Justice Basten and Chief Justice Bathurst both agreed with the orders proposed by Justice Tobias. The judgment was handed down on 25 June 2012.

The appellants submitted that the primary judge erred in law, firstly, failing to determine whether Mr Stuart was in breach of duty to take reasonable care in all the circumstances, and secondly, although he was expressly referred to and addressed on the relevant provisions of the Civil Liability Act 2002 and, in particular, s 5B, he did not structure his judgment to address each of the requirements of that provision.

Tobias AJA did not regard these asserted errors of law as being the ultimate determination of the appeal. The appeal involved a question of fact. The question which required determining was whether, in the circumstances which confronted Mr Stuart when he first observed Dr Walsh moving out of the breakdown lane, his response was reasonable given the risk so created. 2 In addition, his Honour concluded that determining the point of impact was not relevant to the resolution of the true issues in the appeal.

His Honour established that Mr Stuart did not have the opportunity for calm reflection which makes it easy after the event to suggest it would have been wiser if he had remained in the left-hand lane, rather than to have steered slightly to his right and at the same time floored his brakes so that his rear wheels locked and his vehicle went into a skid.

If steering to the right was, in hindsight, the wrong thing to do, it was an error of judgment made in the "agony of the moment".

In Leishman v Thomas, 3 Street CJ stated:

"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 the circumstances, would not have behaved."

Tobias AJA adopted and adapted the observations of Street CJ and stated that 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 did the obvious thing and immediately applied his brakes.

The fact was that Dr Walsh's conduct brought about a sudden emergency in circumstances where it would be unreasonable to criticise Mr Stuart for taking the avoidance action that he did.

The primary judge's finding that Mr Stuart was negligent by failing to keep a proper lookout was not sustained. Neither of the experts suggested that having observed Dr Walsh moving suddenly onto the carriage from the breakdown lane was indicative of a failure on Mr Stuart's part to keep a proper lookout.

In the primary judgment, 4 North J found that it was "an ill chosen choice to move to the right in the same direction as the cycle and that this decision ensured that there would be a collision". Tobias AJA did not sustain this finding as he noted that both experts opined that it was a proper response for Mr Stuart to heavily apply his brakes. Once he had done so and the off-side rear wheels locked, he lost control of the direction in which the vehicle would travel.

His Honour stated that the issue was not whether there was an alternative course of action Mr Stuart could have taken which would have avoided the collision, such as remaining in the left-hand lane without the necessity of having to apply his brakes.

Dr Walsh's alternative case that Mr Stuart acted unreasonably in that he overreacted to the situation with which he was faced was also rejected by Tobias J.

Ultimately, the verdict, judgment and orders made by North J were set aside and a verdict in favour of the appellants was given. The respondent was required to pay the appellants' costs of the proceedings at first instance and the appeal.


When answering an allegation of negligence, the question is whether the defendant responded reasonably to circumstances with which it was presented and is dependent on the facts of each case.

The case reinforces the principle in Leishman v Thomas 5 that a defendant may rely on the principle of the "agony of the moment" if they behaved in such a fashion as a reasonable prudent man, in light of the surrounding circumstances.

The case also confirms that an error of judgment, made in the "agony of the moment" does not necessarily amount to negligence.


1 Bathurst CJ, Basten JA and Tobias AJA
2 Vale v Eggins [2006] NSWCA 348
3 (1957) 75 WN(NSW) 173 at 175
4 at 144
5 Vale v Eggins [2006] NSWCA 348

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