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Agony of the moment defence – a driver’s successful appeal

  • TurkAlert
  • Published 13.04.2021
Reardon v Seselja (ACTCA 2021)

Key Takeaways

Legal liability can be challenged in circumstances where a party establishes their actions were as a result of the agony of the moment and consistent with what a reasonable person in the same position would have done.

In Reardon v Seselja, an appeal court examined whether a driver had breached his duty of care while he was acting to avoid harm under stress during a road rage incident and in circumstances where there was no dispute that his vehicle had caused the collision.

Brief Facts

The trial court held that the first defendant driver (Reardon) had breached his duty of care to other road users and caused personal injury to the plaintiff (Seselja). This outcome followed a finding that Reardon had caused his car to reverse into Seselja’s vehicle, causing minimal property damage but significant injury to her hip.

The trial court heard evidence about the following circumstances and made findings to this effect:

  • Reardon (17 years old) was driving a Lancer with a friend (16 years old) and his two younger siblings, at the time of the collision.
  • Following some back and forth with two occupants of a Holden Commodore, the driver of the Commodore caused his vehicle to stop suddenly just metres in front of the Lancer.
  • Both occupants then emerged from the Commodore and approached the Lancer.
  • The occupants of the Commodore held metal spanners while attempting to get the occupants out of the Lancer to harm them.
  • When one attacker opened the Lancer’s passenger door, pulling Reardon’s friend out, Reardon chose to suddenly reverse the Lancer, with the intention of allowing space to drive around the Commodore and escape.
  • The collision with Seselja’s vehicle occurred as a result of the Lancer’s sudden reverse.

It is clear that all involved in the trial and the appeal considered the attack on the occupants of Reardon’s Lancer to be unprovoked and terrifying.

Straight after the collision occurred the occupants of the Commodore returned to their vehicle, switched off its headlights and fled the scene. There were no details with which to identify the occupants of the Commodore and consequently, there was no evidence from the attackers about their intention or capacity to cause serious harm to Reardon and his passengers.


The trial judge found a breach of duty by Reardon, reasoning as follows:

  • Despite being under attack, Reardon’s duty of care required him to check his rear view mirror before reversing.
  • Reardon should have recalled that Seselja’s vehicle had been travelling approx. 100m back at the time the Commodore suddenly stopped, and taken this knowledge into account when escaping.
  • Had Reardon been aware of the presence of Sesalja’s vehicle behind his car, the collision would not have occurred.

Basically, the judge considered the incident to be a result of Reardon’s lack of driving experience.


The appeal judges disagreed with the trial judge’s view that Reardon’s actions arose from inexperience. They were persuaded that anyone in the position of Reardon would have been terrified.

The appeal court held that the approach to considering whether Reardon was liable required consideration of all material facts and circumstances resulting in the collision, and then to consider the reactions of a reasonable person at that time.

Their honours agreed that in hindsight, it might be observed that Reardon should have checked the rear-view mirror before he reversed and that, if he had done so, he would have seen the vehicle behind him, with the result that the accident may have been avoided.

The court went on to hold, however, that reasonableness is not assessed with the benefit of hindsight.

In a split decision, the appeal was allowed with costs. The dissenting judge would have dismissed the appeal, holding on the available facts that Reardon had been negligent in failing to keep a proper lookout immediately prior to the attack.


The agony of the moment defence is an effective way to defend claims for damages or injuries caused in stressful situations as a result of reactions that might be expected of any reasonable person in the same position.

This defence is heavily reliant on factual evidence about the events under consideration and the analysis undertaken about what the defendant ought reasonably have done looking at all circumstances from their perspective at the time events were unfolding (and not with the bias of hindsight).

In the present case, the appellant benefited from the extraordinary circumstances and the evidence of other witnesses corroborating his version of events.