Peter Hunt
Consultant
CTP Insurance, Insurance
Look Up From Your Phone! Pedestrian’s Contributory Negligence Measured at 100%
27 January, 2026
In Brief
- In multiparty accidents, where the Claimant is the only party at fault, the concept of relative culpability does not apply. Instead, contributory negligence is measured by the extent to which the Claimant departed from the required standard of care.
- A finding of 100% contributory negligence is reserved for “the worst possible” cases.
- A pedestrian crossing a busy six-lane arterial road, whilst looking at their mobile phone, falls into the worst possible case.
Facts
The Personal Injury Commission (PIC) published its decision in Kojic v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPIC 13 on 23 January 2026.
On 25 May 2024, the Claimant was run down whilst trying to cross Victoria Road, at Drummoyne, near the intersection with Osgathorpe Road.
The Insured denied liability for ongoing statutory benefits on the grounds that the Claimant was wholly or mostly at fault for his accident. That decision was confirmed on Internal Review. The Claimant lodged a Miscellaneous Assessment in the Commission.
The Member made the following findings of fact:
- The Insured was heading north on Victoria Road at the time of the accident.
- The Insured was travelling at approximately 50kph because she intended to turn left into a side street which lay 10 to 15 metres away and was slowing her vehicle in order to make the turn.
- A traffic-light controlled intersection lay approximately 85 metres further to the north of the accident site.
- The Claimant walked across the three south-bound lanes of Victoria Road, without incident, and stood for a period on the median strip.
- There were stationary vehicles backed-up in lanes 2 and 3 northbound on Victoria Road.
- After being waved through by an unknown driver, the Claimant walked between the stationary vehicles towards the western kerb of Victoria Road.
- The Insured vehicle collided with the Claimant as the Claimant left lane 2 and entered lane 1.
- The Claimant was looking at the mobile phone in his hand as he entered lane 1.
- Whilst the Claimant looked both ways when he first started to cross Victoria Road and, again, when he stepped from the median strip, he did not look both ways when he left lane 1 and entered lane 2.
- The Claimant emerged, without warning, from behind stationary vehicles into the path of the Claimant’s vehicle.
The Member’s Decision
The Member found that the Claimant was wholly at fault for the accident for the following reasons:
The Claimant’s Conduct
The Member determined that the Claimant departed from the standard of care expected of him because a reasonable person in his position would have:
- Used the pedestrian crossing which lay 85 metres away rather than cross a six-lane highway.
- Exercised additional care because it was foreseeable that there might be vehicles in lane 1 wishing to turn left into the cross-street close to where he chose to cross.
- Taken the act of being waved through as permission to only traverse the lane that vehicle occupied rather than all three northbound lanes.
- Entered lane 1 without being distracted by their mobile phone.
- Looked to their left before entering lane 1 and observed the approach of two vehicles.
The Insured’s Conduct
The Member determined that the Insured did not depart from the standard of care expected of her because she was driving at a reasonable speed and maintaining a proper lookout.
Degree of Contributory Negligence
The Member assessed contributory negligence at 100% on the following bases:
- Whilst there were two parties involved in the accident, only one of them was culpable. It followed that relative culpability was not the correct way of assessing contributory negligence.
- Given that the Claimant was the only party at fault, his contributory negligence must be assessed by the extent to which his conduct departed from the standard expected from a reasonable pedestrian.
- A finding of 100% is reserved for the “worst possible” case of contributory negligence.
- In this case, the Claimant’s conduct falls into the “worst possible” category because he entered lane 1 of a busy arterial road without looking left and whilst looking at his mobile phone.
Why This Case is Important
The decision in Kojic provides another instructive example of how most-at-fault disputes are resolved post the Supreme Court’s decision in AAI Limited t/as GIO v Evic [2024] NSWSC 1272.
If the pedestrian is the only party at fault – and the driver was not at fault in any way – it is tempting to conclude that the pedestrian must, automatically, be wholly at fault. In that scenario they are, after all, the only party to the accident found to be at fault.
The Member in Kojic, however, has interpreted the Supreme Court’s decision in Evic to mean that the concept of relative culpability has no relevance when the Claimant is the only party at fault. Relative culpability cannot be compared when only one party is culpable.
When a pedestrian is the only party at fault, the pedestrian’s contributory negligence is measured by reference to the extent their conduct departed from the standard of care required of them.
In a salutary lesson to everybody addicted to their mobile devices in this modern world, the Member concluded that the Claimant’s focus on his mobile phone, rather than on the vehicles approaching him from his left, placed his want of care in the worst possible class. The Member, therefore, assessed contributory negligence at 100%.
It is important to understand, however, that the finding of 100% contributory negligence stemmed from the finding that the pedestrian’s want of care was in the worst class rather than from the fact that they were the only party at fault.
To see an example of a most-at-fault dispute where the only party at fault had their contributory negligence assessed at 80%, see our Case Note in Raad v QBE Insurance (Australia) Limited [2025] NSWPIC 598
If you would like to discuss this case note, please don’t hesitate to get in touch with CTP Practice Group Leader Peter Hunt today.
