A man who was hit by a car as he crossed a six-lane road while looking at his phone has had his benefits claim rejected after the NSW Personal Injury Commission found he was at fault.

Ilija Kojic suffered a broken kneecap and other injuries when hit by a Toyota Yaris on Victoria Road in Drummoyne in May 2024.

NRMA, the third-party insurer of the Toyota, rejected his claim for statutory benefits on the basis the accident was wholly his fault.  

Personal Injury Commission member Belinda Cassidy agrees, saying the phone use was an example of “a worst possible case” of contributory negligence.

Ms Cassidy says Mr Kojic crossed the road 85 metres from pedestrian lights. The Toyota driver was travelling about 50km/h in a 60km/h zone and braked but could not stop in time.

The commission accepts the evidence of the driver, who reported the accident to police. Her statement was consistent with a witness in another car and was supported by expert evidence.

Mr Kojic refused to give police a statement, on his lawyer’s advice, and officers determined the accident was his fault.

He denied he was looking at his phone and argued the driver was not paying attention. He had crossed three lanes and reached a median strip, and said he continued to look both ways for traffic. Other drivers stopped and waved him across, but when he reached lane one, he was hit, he said. 

Ms Cassidy finds Mr Kojic was looking at his phone, but even if not “I would have still found he had departed from the standard of care for failing to cross Victoria Road at the light-controlled intersection, for not taking sufficient care before crossing from lane two to lane one and for not keeping a proper lookout and observing the presence of the vehicles driven by the insured and [the witness] before making his move into lane one.”

If he had not been using his phone, she would have assessed his contributory negligence at about 80%, rather than 100%.  

Under the NSW Motor Accident Injuries Act, an accident is considered “mostly by the fault” of someone if contributory negligence is deemed greater than 61%.

Read the judgment here.