Reacting in the Agony of the Moment: Can a party challenge Liability?

By: Michael Blinick, Partner and Simren Dhother, Articling Student

Imagine you are driving and are suddenly faced with an erratic and angry driver who threatens you. You feel scared and at risk of harm. You drive away but end up in a collision with another vehicle while trying to get further away from the troubling situation. Are you liable for the injuries and damages arising from the collision or can liability be shifted to the threatening individual for their actions prior to the collision?

Legal liability can be challenged if a party establishes that their actions were consistent with what a reasonable person would do under similar circumstances. Such a situation was recently considered in Moran v Fabrizi, 2023 ONCA 21, where the Court of Appeal addressed the agony of the moment doctrine in deciding whether a third party can be contributorily negligent when this individual was not directly involved in the accident itself. In this case, the third-party driver was involved in a road rage incident with the defendant prior to the defendant’s collision with the plaintiff and the third party driver was found to share liability equally with the defendant on the basis that the collision would not have occurred but for the third party’s actions.


In the underlying action, the Plaintiff, Tate Moran (“Moran”), sued the Defendant, Ottavio Fabrizi (“Fabrizi”), and claimed that he caused injuries by driving through a red light. After being sued, Fabrizi commenced a Third Party Claim against Dennis Chu (“Chu”), alleging that Chu’s negligent operation of his vehicle, his exiting from his vehicle and then his making threats of physical violence created an atmosphere of fear which subsequently caused the subject motor vehicle accident.

Moran and Fabrizi settled the main action and a trial proceeded with respect to the Third Party Claim. Fabrizi argued that the circumstances created by Chu caused him to react in the moment and drive through the red light which subsequently led to the collision. The trial judge rejected this argument stating that Fabrizi still had an obligation to proceed responsibly and owed a duty of care towards Moran.  However, the trial judge also applied the “but for” test to find that the collision would not have occurred but for Chu’s conduct in exiting his vehicle and threatening Fabrizi. As a result, Chu was held 50% liable for the collision.

On appeal, one of Chu’s arguments was that he should not be liable for the collision as Fabrizi failed to establish the requisite elements to allow for the invocation of the ‘agony of the moment’ or the ‘doctrine of emergency’ defence.  The Court held that although Fabrizi was still under an obligation to proceed responsibly and owed a duty of care towards Moran, that does not absolve Chu from his conduct as ancillary to the ultimate cause of the Plaintiff’s injuries. The Court is clear in recognizing that it is not open to Chu to capitalize on the doctrine of “agony of the moment” to escape liability for his role in the accident. As a result, the Court dismissed the appeal and upheld the trial verdict’s apportionment of liability for the accident. 


When a party is asserting the agony of the moment defence, the party bears the onus of proving that the danger was imminent and that they were forced to react in the spur of the moment to avoid harm. In order to invoke the doctrine, the evidence must show that the defendant’s actions were a reasonable response to the particular circumstances that they were facing. If this defence is successfully established and the driver is able to prove that their actions were reasonable in the circumstances, then the party that caused the situation which gave rise to the reaction in the agony of the moment may be liable for the ensuing consequences.

In this case, the Court clarifies that the agony of the moment doctrine allows for exigent circumstances to be taken into account in determining whether the standard of care has been met.

Although Fabrizi still owed a duty of care to Moran, Fabrizi was successful in shifting a portion of the liability to Chu for the exigent circumstances that were created that caused the collision.


The key takeaway from this Court of Appeal decision affirms that when somebody does something illegal, like threatening another person with violence, the wrongdoer will be held accountable if the threatened individual reacts in a reasonable manner but causes injuries and damages to others while in the course of responding. In other words, the wrongdoer does not simply “get out of jail free” and will be held accountable for their role in causing a situation which gave rise to a sudden reaction in the agony of the moment.

Preservation of evidence is of the utmost importance to successfully establish that a party’s conduct was reasonable in the ‘agony of the moment’ to successfully invoke the doctrine of emergency. If the evidence shows that the actions were a result of what a reasonable person in similar circumstances would have done, then the doctrine can be employed to defend allegations of negligence. To increase the likelihood of this defence being successful, the party asserting the defence will need to preserve all factual evidence including witness statements, video footage, police reports and any other materials that may be of use in proving that the actions of the driver were reasonable in the circumstances.