Airbags were introduced to cars to make us safer in the event of an accident. But their use has also resulted in a category of injuries all of its own. Airbag recalls as a result of exploding airbags causing serious injuries – even death – have been a hot topic in the news, recently.
Airbags can cause injury whether they are faulty or operating as they were meant to.
A range of things can go wrong.
They can deploy late or when they are not supposed to, they can not deploy at all, only one might deploy and the other not.
Airbags, when they open do so at great speed and with great force.
Some of the common injuries resulting from airbags include:
Whether you may be able to claim compensation for an injury of this type depends on multiple factors, including the circumstances of the injury, whether there was another vehicle / driver involved in a car accident, whether a driver was at fault, and whether the airbag itself was faulty or in good working condition prior to the incident.
You may have seen or heard about the Takata airbag recall in the news.
The statistics are significant. According to Takata’s website, there have been 24 reported deaths and 300 reported injuries worldwide from faulty airbags.
In Australia, the toll so far is one death and one serious injury in relation to Takata faulty airbags. Takata is responsible for the supply of a significant proportion of airbags in Australia’s vehicles.
The Australian government has made it compulsory for all faulty Takata airbags to be replaced by 31 December 2020.
This affects some 2.7 million vehicles. The recall is being rolled out in 4 stages, with the highest-risk – known as ‘alpha’ – airbags on the top of the priority list.
As part of this recall, vehicle suppliers must comply with a strict schedule for replacement of faulty airbags.
All faulty airbags must be replaced by December 2020. Additionally, suppliers have an ongoing obligation to replace faulty airbags after 2020.
They can cop serious penalties if they do not comply with this.
Can I claim compensation if I am injured by a faulty airbag?
Where you, the driver, are at fault:
In this case, if
Claims made for faulty goods – particularly where there is a ‘safety defect’ - may be made under the Australian Consumer Law. This is a different scheme to compensation laws in Queensland. Different tests apply – for example, in relation to the severity of the injury, and the amount of compensation which may be awarded.
Claims like this are complicated. A claim in negligence may also apply on the basis that manufacturers owe a duty of care to consumers.
Other examples of claims include if a supplier changes the product information through packaging or warranties. This would be a contractual claim. It could also apply to the contract of sale.
However, it can be difficult to claim against suppliers, manufacturers or service-providers.
For example, if manufacturers have given warnings to drivers about the risks of driving with a faulty airbag, it can be hard to show that they were careless or negligent.
Claims are complicated because of 3 main factors:
In this scenario, it is likely that an ordinary claim as against the compulsory third party insurer would be made.
The insurer would be likely to go straight to the manufacturer or supplier, though, to press the claim against them.
In this case, your insurer may refuse to cover you. Similarly, where another party is involved, the compulsory third party insurer may very well refuse to compensate you for any injuries.
Take the government’s actions as a sign of the seriousness of this – people with ‘alpha’ category Takata airbags risk having their registration suspended if they do not arrange for the airbags to be replaced. And if you aren’t registered, you aren’t covered.
Again, if the supplier or manufacturer have warned you of a faulty airbag that you have not had fixed or replaced, you might have a hard time claiming from your insurer.
When an airbag inflates as a result of an impact or crash, it can still cause some serious damage.
Sometimes airbag deployment can happen, even as a result of a minor impact – such as bumping another vehicle at low speed in a car park.
Whether you might have a claim in negligence, contract, consumer law or common law will depend on all the circumstances.
For example, did the airbag go off because of a safety defect?
Did it go off because it was not installed or replaced correctly?
Did the airbag deploy because it was so poorly manufactured that no one could reasonably expect it to go off in that situation?
The most common scenario is this: a passenger is riding with their feet on the dashboard.
If the airbag goes off because of an impact or unexpected deployment, this can result in the feet and legs being pushed at great force back against the person. Broken legs, and severe injuries to other parts of the body (the face, for example) can occur.
It’s a typical Aussie scene – a hot summer’s day, Pete is driving his wife Jen up the highway to head to the beach. The windows are down, the tunes are up and Jen is relaxed, sitting back, with her legs resting up on the dashboard.
Suddenly, another car overtakes them and brakes too quickly. The impact causes both airbags to go off. Jen’s legs are slammed against her face and body, resulting in a broken leg and severe facial trauma.
The same considerations as all other accidents and injuries involving airbags apply, here. However, especially in the case of a negligence claim, Jen’s contributory negligence – that is, her own carelessness sitting in a dangerous position – is likely to be a significant factor against any claims she might have. This is especially the case if the airbag has simply deployed in circumstances where it was intended.
Seatbelts and airbags are intended to operate with the passenger or driver seated in a normal position.
Obviously safety is the first priority.
If all parties are safe, however, it is important to try and remember to preserve evidence of the airbag / pieces at the accident. Even though you'll likely be shaken by the episode, it's important to know what to do in the moment. Sometimes insurers wish to take possession of a vehicle, so you should seek legal advice before allowing this to happen.
It’s important to get advice for your specific situation. Check if you can make a risk-free compensation claim and get free initial advice from our Principal lawyer, Greg Smith.
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