Custovic v Allianz Australia Insurance Limited

The case of Custovic v Allianz Australia Insurance Limited involved a claim for compensation under the Motor Accident Injuries Act 2017. The claimant was riding a registered motorbike on a fire trail in the Southern Highlands, following his friend who was familiar with the trail. The claimant lost control of his bike, collided with a fallen tree, and sustained serious injuries. The issue was whether the claimant was wholly or mostly at fault, and if so, to what degree, under sections 3.11, 3.28 and 3.38 of the Act.

The court had to determine if the claimant’s contributory negligence was sufficient to classify him as wholly or mostly at fault. The claimant argued that he was not aware of the specific tree that caused him to lose control, but he was aware of the general presence of obstacles on the trail. The court found that the fallen tree was obscured by a bump in the road, which the claimant should have been able to see. The court held that the claimant’s negligence was significant enough to classify him as wholly or mostly at fault, assessing his contributory negligence at 75%.

The court followed the decision in AAI Limited t/as GIO v Evic and also considered Allianz Australia Insurance Limited v Shuk, Axiak v Ingram, and Davis v Swift. The court held that the claimant’s contributory negligence was 75%, and he was therefore wholly or mostly at fault. The court awarded Allianz Australia Insurance Limited costs of $3,300. The claimant's application for assessment was dismissed.