*Pic: Airbag deployed ... Paul Frankenstein, Flickr
First published July 29
Regrettably it takes a death for action to occur ...
On Friday 21st of July the NSW police announced the first death of a motorist from a faulty air bag. On the following Monday, at long last the the mainstream media led by the ABC stating the consumer magazine “Choice” magazine as its main reference source at last really put to the fore this deadly issue.
However, most of the report was actually very old news, known but not main stream media broadcasts and easily obtained from reputable internet sources. It was basically the same sources I have used in my previous article ( HERE: When is an airbag not an airbag? ) that care to look and much has a long historical perspective.
The ABC newscasts also seemed to frame an interview with ACCC chairman Rod Sims. This information is available as a media release MR 117/17 from the ACCC website. All to me, “a get over with and all will soon be forgotten” way of presenting the new long overdue initiatives of the ACCC in dealing with this horrendous problem. Any thing is all forgotten before the new session of Parliament starting in August. Sounded very contrived.
What was not mentioned (of course) in any detail was the legal situation, which was primary purpose of my original article in TT on 27th June 17 ( HERE: When is an airbag not an airbag? ).
My article ( HERE: When is an airbag not an airbag? ) was to illustrate the legal aspect of this situation, the affect on Australian motorists and possible neglect by government statutory bodies, seemingly giving apparent impunity from legal action against the Motor Industry for what is a catastrophe solely of their own making.
To put my previous article in a different way. ( The first article “When is an air bag not an air bag” should be read first, HERE: When is an airbag not an airbag? ).
Explosive protocol presents a legal paradox.
Under our legal system you are Innocent until proven guilty and this principle applies to civil cases. In taking an airbag motor manufacturer to court over an airbag issue you would have to prove that the airbag was dangerous.
Under explosive protocol it is the opposite - guilty until proven innocent.
If a test case failed by incompetent argument then the courts could approve a dangerous device … !
No one has proved that the use of Ammonium nitrate in airbag inflators is safe. To the contrary empirical and operational evidence seems to indicate it is unsafe.
Australia has a series of laws concerning, vehicle design, consumer law, importation laws and dangerous goods acts of various kinds both Federal and State as well as common law. Many of these laws are totally independent and also form a legal underlay to the the consumer law.
There is one particular Vehicle design rule law which is very appropriate to this case and that is”
“Vehicles must be designed for all Australian conditions”.
My argument is that these laws by default link together in such a way to catch the air bag saga in numerous ways. Apart from civil law implications they also have criminal implications.
If criminal implications were substantiated then this could lead to attempted manslaughter and manslaughter charges being laid against the decision makers of the the motor companies involved. In the NT incident in late April, a young lady still fighting for her life in hospital and the very recent NSW incident of the death of a male.
Further it would seem that our government watch dog agencies and both Federal and State police failed in their duties to enforce these laws and therefore are possibly negligent.
It was within the power of the ACCC to remove affected vehicles from the road and by default could be exposed similar charges.
In the case of the motor industry:
Did some motor companies knowingly import vehicles or manufacture vehicles with air bag inflator’s that were not “fit for purpose”. Also was it foreseeable that these defective devices could cause serious harm when deployed.
The second aspect is the dangerous goods acts and knowingly importing or manufacturing cars with unstable explosive devices. This is I believe is a criminal offence.
Further under dangerous goods State law, to knowingly sell such items to the public, this would include the car dealerships and their sales people.
From my findings and there is so much quality prima fascia evidence it hard to conceive that the motor industry did not know along time ago that there were serious problems with the Takata airbag technology and that it had extremely serious implication with structure of our Federal and State laws.
They carried on importing these vehicles so fitted and selling them possibly in contravention to the vehicle design rules, the consumer act, import of dangerous goods acts and on selling through the dealer networks, whom at some point must have known, as today, it seems, some motor dealerships still have new vehicles on their dealers showroom floor with ammonium nitrate air bags. These vehicles may also be possibly also violating state laws too.
Similar arguments can be made for the used vehicle trade.
Further it seems a number of companies have been replacing like with like (not all, I repeat, not all, as some Motor Companies have seen the sense in using different propellent replacement technology, thankfully) and the legal cycle starts all over again. Firstly by actually importing the replacement deadly ammonium nitrate inflator’s. It is hard to see how these companies could do so unknowingly.
Some of these possible offences are not a civil matter but a police matter and as such the senior management of and boards of the motor companies and dealerships should face a mandatory police inquiry. Something which I would think the police as the enforcement agency of the Crown are duty bound to investigate irrespective of the ACCC. Also the Customs and Excise, now part of border security, which I believe has even greater powers of search than the police.
There is a physical chemistry and legal definition of an explosive which ammonium nitrate is:
In the case of the ACCC:
The ACCC implied on TV interviews they are now thinking of introducing a compulsory recall order.
Just what on earth were they thinking at least two years ago when the first big wave of recall lists came in from the manufacturers not to do so.
I find it incredulous that their technical department which is run by the Department of Infrastructure had no idea on what was happening overseas particularly in the USA.
These explosive devices are probably the most dangerous piece of permanent equipment ever to be permanently installed within the passenger compartment of civilian vehicles.
This raises the questions is the technical department incompetent, does it have appropriately qualified and experienced staff or poor leadership. Thereby providing inferior advice to head of the ACCC Rod Sims.
Or, is the vehicle recalls technical department a sub contracted poor relation of the ACCC main body.
A body who see themselves as the defenders of the integrity of financial world and corporate governance with the technical part beneath them.
The TV performance of Rod Sims I am afraid did give me the impression of the latter as does his internet resum’e citing a background in economics.
Rod Sims is the head of the ACCC and is therefore accountable for all the functions of that organisation.
His TV performance indicated to me he was very uncomfortable with technical matters. Could he have misinterpreted the severity of the problem reported to him by the technical department very seriously?
Respectfully, is! Rod Sims just not qualified or experienced enough in the area of technology to make those hard technical decisions?
Or too frighten by natural training of damaging the economy or upsetting his political masters?
The wrong person for the job leading to a catastrophic blunder of State governance?
Or was the ACCC directly manipulated by Federal Government for an outcome which was more to their way of thinking?
This then leads to the question was the Federal Government protecting the Motor industry and forfeiting consumer rights in the process?
If so was this pressure on the ACCC within ministerial powers or did it need parliament to approve?
A further topic of the first article was the question of motor third party insurance and the lack of transparency by the insurance companies. This was referred along with other items from above to my MP Julie Collins. I met with Julie on the 18 July and she said that today non of the parties they asked for information on these matters had yet replied and I got the impression that she was pressing the matter. I have had no reply from my enquires with ACCC and the insurance companies. I will post details when so informed.
It was noted by Rod Sims that some vehicle manufactures were more co operative than others and the ACCC would appreciate public input.
The last comment from my previous article #13 from Marie Salvator was on this subject. Marie calling two different motor company dealerships presenting two very different corporate policies.
Vehicles fitted with Takata ammonium nitrate propellant air bags which are from a motor company that is not supportive and perhaps even hostile to retrofitting replacement air bags with a tried and proven propellant (but more expensive) could face an uncertain future market place acceptability.
Readers who are in the market place for new or used vehicles and those concerned about their own vehicle replacement air bags could do well by inquiring with either the dealership or the motor company head office their policy on air bags. Asking particularly about the chemical propellant they use.
Then post your findings to the ACCC on their website.
Also posting on the comments line of this article as well.
This could give a reasonable cross section of policies from the many motor companies involved or not involved!!! Short and sweet no need for long explanations.
I now understand that new vehicles with ammonium nitrate air bags have been sanctioned to sold by the ACCC and the seller need not disclose they are ammonium nitrate air bags. However they must be replaced within a specified time.
I suggest that there may be other laws which may apply to these vehicles as to prevent there sale as no one has proved that ammonium nitrate is an acceptably safe propellent under any circumstances.
Under explosive protocol “if it not known to be safe then it is not safe”. Therefore it could be reasonably argued that if an incident was to occur within the stated period then the ACCC could be open to vicarious liability suits.
In the first article there were comments about the statistics on the chances of being harmed by a faulty air bag. There seems to be a lot of misconceptions on understanding these statistic.
Injury and death rates normally given on the media are composite figures giving an overall picture of road safety, usually on an annual basis. Nothing wrong with that, however in vehicle design there are two key component that are contained within these overall figures.
Firstly “primary safety”:
That is the ability of vehicle to avoid an accident, the tyres, the road holding, suspension, steering precision, brakes etc. Most of all the driver insurance companies will tell you some drivers are more crash prone than others. So it is the chances of being of being in an individual incident irrespective the severity of the incident. As we all know incidents do unfortunately occur.
The second is and most import in the case of airbags“secondary safety”:
That is the ability of the occupants of the vehicle to survive and incident severe or minor. In this respect vehicles have improved enormously over the past 20 years but are far from a “safe heaven”. Like primary safety there are numerous factors in the occupant protection, the engineering of the strength of the passenger capsule, energy absorbing external structures, seatbelts of course and then airbags to assist seatbelts. It is the sum total of these safety features that gives an occupant survival rating for a given model of vehicle.
When any one of these safety feature is compromised the rating of the protection system lowers. In the case of substandard airbags (these devises are sophisticated in their design) that actively become harmful (they just don’t passively fail) the overall safety factor (for which you pay for when you buy a vehicle) can diminish rapidly in the case of airbags’ zero (they can kill you).
If you do have a faulty airbag that deploys then the chances of being hurt by flying shrapnel could be estimated as high a 80%. However, being hit by a piece of shrapnel that could kill or maim considerably lower. The inflater cup can shatter in random ways such is nature of the problem which can be attributed to the very poor manufacturing quality control and the particular vehicle the air bag is installed . It can also decrease the effectiveness of the air bag to actually do its job of protection.
The chances of having a faulty airbag are extremely difficult to calculate because data on test by Takata are highly suspect along with poor manufacturing records and then there is the age and environment factors to take into account.
Some put the factor as high as 50% of having a faulty airbag with serious potential, I would not like to say, except it considerable lowers the safety factor at lower speeds where survival of an incident could normally be expected. The two unfortunate incidents in Australia are in this category.
I doubt even independent crash test laboratories could give a firm figure.
If deaths and injuries statistics per passenger kilometre are used, then small motor passenger vehicles fall well behind planes, trains, and even buses and coaches.
So every bit of protection from systems, that you are paying for, to ensure the safety of you and your loved ones is needed.
Remember for you or loved ones it is a 100% if a fatality occurs.
There is one overall thought in my analysis of this saga and it can be summed up as follows:
In risk analysis there is a text book case of a large USA vehicle manufacture, that in the 1970’s, produced a car which was notorious for catching fire in rear end collisions and incinerate the vehicle occupants. The manufacturer calculated that it was cheaper to pay law suits arising from this design weakness than recall and modify the vehicles.
It does appear to me a similar philosophy is being displayed by the both the Motor manufacturers the Government and ACCC….perhaps in in tandem?
If so then who is the leader?
The USA courts I believe eventually ruled against the motor company policy.
*Kelvin Jones did his technical training in UK by a major electrical engineering manufacturing company in Power Engineering with Switch and Protection specialisation moving onto defence electronics commissioning RADAR and development of underwater weapons. TV Transmission. Field work and commissioning work on industrial electronics and transmission line carrier protection. Research in cellular and fibre optics communications. Field work on scientific, bio, and medical instrumentation with extensive work on Medical Imaging particularly CT scanners and Nuclear imaging.