Inquest into the death of Huy Neng Ngo

Case Number: 17/214664

Date of Findings: 19 November 2021

Magistrate: Deputy State Coroner, Magistrate Elaine Truscott

Catchwords: CORONIAL LAW – Defective Takata Airbags - Product Safety- Voluntary Recal

Responses

Recommendations

To Honda Australia:

1. If it has not already done so, implement a system whereby Honda dealers are given notice of the numbers of consumers in their Prime Marketing Area that are to be affected by a recall to be announced by Honda Australia (and particularly recalls affecting high volumes of vehicles). 
2. Honda Australia implement a process whereby when Honda Australia receives notice from its direct or indirect parent or a related company that a motor vehicle and/or componentry is subject to recall, that, rather than replicate the language of the notification conveyed to it, Honda Australia conduct appropriate due diligence and inquiries with its parent company to ensure:
   a. that the defect and the nature of the risk is adequately and accurately communicated in its notifications to the Australian Competition and Consumer Commission (ACCC), Commonwealth Department of Infrastructure and Regional Development (DIRD) and consumers; and
   b. that any updated knowledge about the description of defect and the nature of the risk is notified in a timely manner.

To the Federal Chamber of Automotive Industries:

1. That to the extent not already done so, undertake a review of the Federal Chamber of Automotive Industries (FCAI) Code, such review to:
   a. include making express provision in the Code for the need for members to consider what is appropriate at all stages of a recall communications strategy to communicate with customers about the existence of the recall (including the mode, frequency and content of notifications to consumers), having regard to:
       i. the nature of the safety defect;
       ii. the assessed level of risk arising from the safety defect (including the nature of the risk or potential harm arising from the safety defect and the probability of the harm materialising); and
       iii. the urgency for rectification of the product in which the safety defect is found to exist;
   b. include providing more detailed guidance to members about the development of recall strategies, which should adapt to changed understandings of risk, including the use of telephone, email, text messages and social media to communicate with customers about a recall and the need to amend such strategies based upon customer response and revised understandings of risk;
   c. include providing more substantive guidance to members about the appearance and contents of written recall communications, including the use of visual aids and clear and explicit language that does not downplay risk; and
   d. include providing clarification in relation to the interaction between the FCAI Code and any recall guidelines issued (or that may in due course be issued) by the ACCC and/or DIRD, including by inclusion of a crossreference to such guidelines.
   e. give consideration to the:
       i. incorporation of reference to the commencement of the Road Vehicle Standards Act 2018 (Cth) (RVS Act); and
       ii. inclusion of detail around conducting a risk identification and assessment;
   f. Include a guideline to the effect:
       i. If, in respect of any vehicle imported into the Australian market by a member, a member receives notice from a parent company that road vehicles and/or road vehicle components included in the model and VIN range of those imported vehicles is subject to recall, the member conduct due diligence and inquiries with its parent company to ensure:
           A. that the defect and the nature of the risk is adequately and accurately communicated in the members notifications to DIRD, and if necessary, the ACCC; and
            B. that any updated knowledge about the defect and the nature of the risk is notified in a timely manner.
       ii. If a member receives notification from a parent company that a road vehicle and/or road component is subject to a recall, but the member has not imported that model or VIN range into the Australian market then that advice will be forwarded to the DIRD and as necessary to the ACCC.

To the Department of Infrastructure, Transport, Cities and Regional Development and the Australian Competition and Consumer Commission:

1. To the extent not already done, that DIRD and the ACCC should liaise:
   a. to provide the FCAI with any suggested changes to the FCAI Code;
   b. in relation to the development and publication of guidance material from the regulators’ perspective as to the intended interaction between the ACCC Guidelines and the FCAI Code (including any revised form of those documents); and
   c. to ensure that the any revised recall guidelines published by them specify the intended interaction between such guidelines and the FCAI Code. 
2. In the case of a voluntary recall of motor vehicles and/or componentry:
   a. that relevant written protocols are put in place (to the extent not done already) and made publicly available as to the assignment of responsibility as between DIRD and the ACCC for reviewing the effectiveness of consumer recall communications, in terms of their communications style and likelihood of prompting a consumer response, and that relevant training in consumer communications be undertaken by officers to whom such a task is allocated;
   b. that any recall guidelines published by DIRD or the ACCC, including any updated version of the ACCC Guidelines, are consistent with such protocol. 
3. Subject to the effects of the scheme under the Road Vehicle Standards Act 2018 (Cth), that steps be taken by DIRD and the ACCC to finalise (to the extent not already done) a policy document outlining the applicable “escalation process” as between DIRD and the ACCC, in relation to the exercise of powers under the ACL (if applicable) in respect of motor vehicle recalls for which DIRD has assumed the relevant monitoring role. If applicable, such a document (which should be made publicly available) could incorporate the process for DIRD to request the ACCC to recommend the exercise of compulsory powers under the Australian Consumer Law (ACL) in relation to a motor vehicle product, and the considerations to be taken into account by the ACCC in determining whether to do so. 
4. A written protocol be developed by DIRD and the ACCC to the extent not already done (and made publicly available) that makes clear to motor vehicle suppliers:
   a. the respective roles of DIRD and the ACCC in relation to a product recall of motor vehicles and/or componentry (and how this might be ascertained for a given recall); and
   b. the process that needs to be followed by suppliers if it is sought that information provided to DIRD / ACCC about a safety defect is to be treated as commercially sensitive or confidential, and DIRD and the ACCC’s general position about such requests.

To The Department of Infrastructure, Transport, Cities and Regional Development:

1. That DIRD develop policy and protocols for the carrying out of investigations in relation to complaints involving motor vehicle componentry generally and airbags specifically, such policy and protocols to provide for clear communications and record keeping as to progress and finalisation of investigations and as to the obtaining of consent for information sharing from any complainant and third party including the police, vehicle dealers and suppliers. 
2. That DIRD develop a protocol whereby there is a register kept of misdeployments and investigations of misdeployments of airbags on record and that such information be made available to the public, and when a new development arises which may affect a police or coronial investigation into a serious injury or death arising from a misdeployed airbag, that such information be provided to the head of the police and the coronial unit of each State in Australia. 
3. That DIRD consider:
   a. the extent of its reliance upon benchmark recall completion figures, based on aggregated data from historical voluntary recalls, as a means of assessing the efficacy of voluntary recalls related to defective airbags or other motor vehicle componentry; and
   b. developing (and making publicly available) written protocols against which the efficacy of a supplier’s recall efforts are assessed by reference to a comprehensive risk assessment, in addition to rectification rates and an assessment of the strategies deployed by the supplier to implement the recall. 
4. That DIRD consider engaging in a study to assess the feasibility of setting a Standard in respect of airbag performance and vulnerability to midsdeployment considering of airbags in the Australian context.

To Transport for New South Wales:

1. To the extent not already done, TfNSW should take steps to consider sending warning letters to owners of vehicles the subject of voluntary recalls for defective Takata airbags of the kind referred and/or to introduce registration sanctions for such vehicles.