Published by Geoff Harrison | 19 January 2025
This defence relates to traffic offences where some form of negligence is alleged by the prosecution. The defence arises where the driver is not the cause of the crisis but is forced to make a split decision, which turns out, in hindsight, to be an error of judgment. The principle of 'Agony of the moment' was set out and discussed in the case of Stuart v Walsh by Tobias AJA at [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."
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