“Agony of the moment” principle in road traffic accidents

Martini and Zeqo v Royal Sun Alliance Insurance PLC (1) AXA XL Insurance Company (2) Southern Rock Insurance (3) [10.01.22]

This article was co-authored by Eva Rurlander, Trainee Solicitor, London. 

In a recent High Court trial in which Kennedys represented AXA XL Insurance Company with Counsel, Anna Symington of 12 Kings Bench Walk, the court took a common sense approach to liability in relation to a high speed, multi-vehicle road traffic accident.


The collision occurred at night and involved five vehicles on an unlit stretch of motorway.

There were three phases to the collision:

  • First, the driver of a Fiat van, insured by the first defendant, fell asleep at the wheel and hit the rear of a Mercedes HGV. The Fiat sustained heavy impact damage and was left stranded in the middle of the motorway.
  • The second phase of the collision, involved a Scania HGV approaching the collision in the first lane. The Scania was forced to avoid the Fiat by moving into the third lane. Unfortunately, this put the Scania directly in the path of the claimants’ Audi. In attempting the avoid the Scania, the Audi struck the stranded Fiat and then the Scania before coming to rest in the middle lane. The claimants got out of their vehicle and proceeded to walk over to the grass verge by the hard shoulder.
  • The third and final phase involved a Vauxhall van, insured by AXA XL Insurance Company. The Vauxhall approached the scene, moved into the second lane, and hit the Fiat causing it to spin across the carriageway before hitting the claimants standing on the grass verge. The claimants and the two occupants of the Vauxhall sustained injuries and the driver of the Fiat was subsequently convicted on four counts of causing serious injury by dangerous driving.

The claimants brought proceedings against the insurers of the Fiat (first defendant) and the Vauxhall (second defendant). The second claimant also brought proceedings against the first defendant’s insurer, the third defendant.

The claim came to trial before HHJ Jon Turner QC.

The court’s decision

The first defendant argued that the negligent driving of the first and second defendants each constituted a novus actus interveniens.

Counsel for the second defendant successfully argued that this was untenable in light of the first defendant’s criminal conviction for causing serious injury by dangerous driving and as such, argued that the court “must conclude” that the driver of the Fiat was liable for the claimants’ injuries.

The issues and the court’s findings on liability hinged on the reasonableness of the drivers’ actions in the moments between becoming aware of the scene they were approaching, and the collisions occurring. An abundance of accident reconstruction experts were called to give evidence, as there was very little by way of lay witness evidence.

During the course of the trial, the first defendant abandoned the novus actus argument, conceding liability but arguing contributory negligence on the part of the second and third defendants.

The first defendant maintained that the second defendant could have avoided a collision by taking one or more precautionary steps as far back as 200 metres away from the accident scene. These were: illuminating his main beam lights, slowing down, moving into the second lane and then the third lane and/or remaining in the first lane but at a slower speed.

HHJ Turner rejected these arguments finding that the actions taken by the second defendant were very much in the agony of the moment. HHJ Turner said that it was not appropriate for the court to engage in a fine-grained mathematical calculus, based on imperfect information, doubtful assumptions and with the benefit of hindsight, in order to assess liability in negligence.


Most road traffic accident cases rarely end up at trial but this case is unique given the multiplicity of parties, vehicles involved and the key road traffic consultants instructed by the various parties.

This judgment serves as a useful example for insurers in respect of the “agony of the moment”. This simple principle allows the court to depart from requiring the same standard of care from a party who is forced to exercise judgment under immense pressure, compared to a party not under such pressure.

The lack of lay witness evidence meant that the experts were faced with an element of guesswork. Despite the very specific facts of this case, the outcome demonstrates the application of common sense. In doing so, the court considered Wright v Lodge [1993] in attributing tortious liability solely to the first defendant, finding that the succeeding events of the other vehicles did not break the initial chain of causation stemming from the Fiat’s negligence.

Despite this being a QOCS case, not only was liability on the part of AXA XL Insurance Company avoided, but the insurer was also able to recover its costs from the losing co-defendant.

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