AMBULANCE-CHASING LAWYERS HAVE made every car company a juicy target for disgruntled customers, in some cases roping buyers into questionable class actions with the promise of big returns and a promise of “no win, no fee”.
The recent win by Volkswagen in a civil class action brought against it in the New South Wales Supreme Court should dissuade some law firms, but is unlikely to make a noticeable difference.
The matter arose from the global recall of Takata airbags that began in 2018 and has now concluded in Australia.
Proceedings were commenced against VGA in 2018 and case managed together with substantively similar cases against six other manufacturers, which have not been determined.
VGA maintained that the case brought against it was without merit and resolved to defend the action. As was shown in evidence, there have been no incidents reported of a Takata airbag rupture in any relevant Volkswagen vehicles in the field globally.
In compliance with the mandatory recall notice issued by the Australian Government, Volkswagen Group Australia replaced the Takata airbags that were subject of the proceeding at no cost to the owner.
In February 2016 Volkswagen AG commenced testing of some 20,000 airbag inflators retrieved from Volkswagen vehicles manufactured from 2005 onwards and from various geographical areas around the world with a range of climactic conditions.
In his judgement Justice James Stevenson said: “VW AG’s Product Safety Committee determined that there was no systemic risk associated with airbag inflators installed in Volkswagen vehicles that would warrant their recall.
“Indeed, I was informed that no European regulator has required a recall of Volkswagens fitted with Takata airbags. The results of the Empirical Analysis Program suggest that the airbags are safe.”
The court found that the plaintiff, Professor Phillip Dwyer, did not establish any link between the propensity of PSAN (phase-stabilised ammonium nitrate, the chemical used as a propellant in the relevant airbags supplied by Takata) to degrade so as to cause it to explode or malfunction in the inflators installed in Volkswagen vehicles.
Therefore he did not establish that his vehicle was not of acceptable quality when he purchased it.
Nor did the plaintiff establish that he suffered any loss or damage by reason of the installation of a Takata airbag in his vehicle (even if the court had found a defect as claimed), “not least because Volkswagen has, without charge, replaced the Takata airbag with an airbag that is undoubtedly sound”.