The New South Wales Supreme Court has dismissed a class-action airbag lawsuit against Volkswagen Group Australia, awarding costs to the company.
The Court found back June the lead plaintiff, Professor Phillip Dwyer, couldn’t establish he had suffered any damage as a result of the installation of a Takata airbag in his vehicle, and that he couldn’t establish the vehicle wasn’t of acceptable quality when he purchased it.
It has now ruled the funder of the litigation is “jointly and severally liable” for costs to Volkswagen Group Australia.
Professor Dwyer purchased his Volkswagen Passat in 2013, and Volkswagen replaced the Takata airbag in his vehicle in 2019, free of charge.
The recall notice had specified owners of affected vehicles needed to have the airbag replaced before the car reached six years of age.
In the court case, the plaintiff contended the phase-stabilised ammonium nitrate (PSAN) in his Passat’s airbag had a propensity to degrade over time when exposed to moisture and temperature fluctuations, and could rupture in a life-threatening way.
Professor Dwyer therefore contended his car was not safe to drive, and that he was entitled to recover damages: the difference between the price he paid, and the vehicle’s “true value”. That was approximately $15,000.
Justice Stevenson found he had suffered no loss, noting the plaintiff and his wife had continued to drive the car without incident after receiving the recall notice.
Evidence was also heard Volkswagen AG had started an Empirical Analysis Program of Takata airbag inflators in 2016, recovering 20,000 inflators from all over the world that had been used in Volkswagen products.
This investigation didn’t find any relevant anomalies or manufacturing faults, and no European regulator has required a recall of Volkswagens fitted with Takata airbags.
The company had installed Takata front airbag inflators containing PSAN in around 20 million vehicles worldwide.
“It is not, of course, for VW to show that the airbags are safe. It is for the plaintiff to show that they are unsafe. The results of the Empirical Analysis Program suggest that the airbags are safe,” said Justice Stevenson in June.
“I do not accept the submission made on behalf of the plaintiff that “the tests that Volkswagen carried out where undertaken to support, not truly to test” whether the airbag inflators were unsafe.
“There is nothing in the evidence to suggest that the Empirical Analysis Program was not a genuine attempt by VW AG to ascertain whether there was any problem with Takata airbags installed in Volkswagens.”
