Faulty airbags could result in lawsuit complications

MOTORISTS driving cars with defective airbags could face compensation complications if they are involved in a crash before the faulty airbags have been replaced, a law firm has warned.

At least 850,000 Australian cars - reportedly the equivalent of one in every 15 cars on Australian roads - are involved in the world's biggest recall, with 53 million vehicles recalled because of safety fears for their airbags which can explode with shrapnel if activated in a crash.

Motorists are being told most of them will have to wait up to a year before the airbags are replaced - because the supplier at the centre of the crisis can't make the replacements fast enough.

Brisbane injury compensation law expert Mark O'Connor said consequently Australian drivers of affected vehicles could be driving for up to a year with the potential spectre of death over their head from the devices installed to protect them.

The Japanese airbag manufacturer Takata - which supplies a significant percentage of the car industry's airbags has admitted to faults with its airbags. So far defective airbags have claimed six lives overseas but no deaths or injuries have so far been reported in Australia.

Mr O'Connor, a director of Brisbane law firm Bennett & Philp Lawyers, said the issue of liability if faulty airbags deployed in a crash in Australia would likely see insurers going after the airbag manufacturers.

He outlined two potential scenarios - one when an airbag may explode because of a driver's negligence or because it is a single vehicle collision and the second when the accident occurs because of a third party's negligence and causes an airbag to inflate.

"In the first scenario the driver who is responsible for the accident can bring a claim for the extent that his/her injuries are worse than may otherwise would be had it not been for the failure of the airbags to function correctly," he said.

"This would be a claim against the distributor/manufacturer of the airbag or against the manufacturer of the vehicle.  These claims however are governed by the provisions of the Competition and Consumer Act 2010, which is Federal legislation, which deal with death and injury claims caused by defective goods," Mr O'Connor added.

"The CCA Act reduces the damages which a claimant can claim for non-economic loss (loss for pain suffering and permanent impairment) you need to be assessed as having an injury which is 15% of "a most extreme case" before you can recover any damages for this. It also limits claims for loss of earnings to double average weekly earnings," he said.

Mr O'Connor said In regard to the second scenario, involving a third party, if because of the malfunction in the airbag the driver receives more serious injuries then otherwise be the case he would be able to, in his view, claim his full damages against the compulsory third-party insurer of the responsible vehicle.

"The CTP insurer of the responsible vehicle however may drag in the manufacturer or supplier of the airbags to contribute for the extent that the damages are greater than they otherwise would be because of the failure of the airbags to function properly.

Owners of vehicles with defective airbags that have not yet been replaced would face the awful situation of effectively not being able to sue car companies until a person was injured or killed due to the defective airbags.'

"You can't sue over the fear they may fail, it has to actually happen," he added.

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