In Brook v. Tod Estate, the Plaintiff was injured in a car accident, and brought ICBC claims for damages. The matters of liability and quantum were severed, with the liability trial being heard first. One of the Defendants made an unsafe lane change, forcing another Defendant to swerve to avoid a collision. In an effort to do so, this latter Defendant swerved into oncoming traffic, thereby striking the Plaintiff head on. The Plaintiff was injured, and brought ICBC claims for damages against both Defendants. The Court held that the Defendant who made the unsafe lane change was negligent, however the Defendant who swerved to avoid the collision was not negligent in any way.
 Counsel has submitted that it was Mr. Brook who faced the agony of collision and yet his evasive efforts, although fruitless, have not been characterized as negligence. On the other hand it is argued Mr. Tod had choices available to him and his circumstances cannot be properly characterized as the agony of collision. Notwithstanding the able arguments of Ms. Goodrick’s counsel, I do not agree that Mr. Tod did not face an agonizing choice with no time to make a considered decision. I have found Ms. Goodrick’s vehicle intruded into the fast lane already occupied by Mr. Tod’s vehicle. She began her lane change and simultaneously saw Mr. Tod’s vehicle overlapping hers by several feet. It was not realistic to expect Mr. Tod to make an instantaneous decision to accept a collision, no matter how minor it might in retrospect have been, with Ms. Goodrick’s vehicle. In the negligible time available to Mr. Tod, he cannot have been expected to weigh that fine calculation. It is true he could have braked. One difficulty with that proposition is that it cannot be now known if he both braked and swerved. What we do know from the evidence of Mr. Leggett is that Mr. Tod was travelling at a safe speed. He did not create the danger that caused him to react in the agony of the moment. If there had been a collision between his car and Ms. Goodrick’s car, we cannot know if one or both of those cars would have lost control leading to this accident.
 Mr. Garner for the plaintiff submits Mr. Tod had a higher standard of care imposed on him because Ms. Goodrick’s car had an “N” plate on the back indicating she was a novice driver. I doubt if the presence of that letter on a car changes the standard of care of other drivers, but in any event, Mr. Tod was driving with reasonable care before he was cut off by Ms. Goodrick’s failure to see his car before beginning her lane change. It is not open to this Court to criticize the agonizing choice made by Mr. Tod in the last two or three seconds of his life as he attempted to avoid an accident which I find was caused solely by the negligence of the defendant, Ms. Goodrick.
 The action against Mr. Tod is dismissed.