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A CLASS action taken against Volkswagen Group Australia (VGA) by a university professor seeking damages over the Takata airbag recall, has cost him dearly.  

Not only does he and his litigation funder have to equally pay his legal fees in the case, which failed, they have been ordered to pay the legal fees incurred in the action by VGA.

The New South Wales supreme court awarded costs to VGA in its successful defence of the class action brought against by the lead plaintiff, Professor Phillip Dwyer.

The matter arose from the global recall of Takata airbags that began in 2018 and has now concluded in Australia.

Professor Dwyer had sought to establish a 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.

In June, the court found that Professor Dwyer’s case did not in fact establish any such link.

Justice Stevenson also ruled that Professor Dwyer did not establish that his vehicle was not of acceptable quality when he purchased it.

Justice Stevenson also ruled that the plaintiff did not 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”.

VGA, maintained that the case brought against it was without merit. It showed that there have been no incidents reported of a Takata airbag rupture in any relevant Volkswagen vehicles in the field globally. 

The company said that beginning in February 2016, 20,000 airbag inflators retrieved from Volkswagen vehicles manufactured from 2005 onwards and from various geographical areas around the world with a range of climatic conditions had been tested.

In his June judgement, Justice 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.”

This week the court determined that the proceedings be formally dismissed, with the plaintiff and the litigation funder funding the class action to be jointly and severally liable for Volkswagen’s costs; on a full indemnity basis in relation to the structural break analysis component of the loss and damage evidence (which was found to be manifestly deficient), and on a party/party basis for the balance of costs.

By John Mellor

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