NL Takata Airbag Alert

[Tuba]

Maybe I have miscomprehended your point.

In any event the car owners here are not enforcing a right as your example was with HN.

What MMA is trying to do is show that they have taken all reasonable steps to mitigate the real risk of injury or loss caused by the airbag. Have you seen what they are asking people to sign? It is simply a form that states you were offered a buy-back and refused and that they ask permission to pass your details along to the ACCC to indicate that you were contacted and are now aware of the risk. It is one page document.

MMA have a duty of care at Common-law. There is a foreseeable risk of harm. They need to do everything reasonable to respond to that risk. They cannot replace the part. Therefore they are trying to refund the car. Is this reasonable? Im not sure that it is - especially given their calculations of market value and the amount of money some people have put into these cars.

MMA will likely have other records to show that you visited and left with your vehicle but they are just doing what their lawyers have told them is the easiest way to record your attendence for the recall and knowledge of the risks and, importantly, your refusal of what MMA will say is a reasonable offer.




I agree you dont have to sign it and they cannot keep your vehicle - but it is not a waiver or contract.

As Trump would say NO QUID PRO QUO

The form is not a contract but rather it is an authority and acknowledgement. The form doesn't create or destroy rights for either party. It provides an authority for MMA to pass along details of your meeting with them to the ACCC and records your attendance at the meeting.



I agree, except they may have other duties under Federal Legislation concerning Voluntary recalled road vehicles but I am not sure.





My point about 20 years+ was if you refuse the buy-back and your rego is cancelled by the Govt, what right do you have to seek compensation from MMA? There's no contract, no duty to ensure your car remains registerable, no stat warranty...



This is exactly what is going to happen I fear.

Youre too focused on warranty, its not a warranty repair. The issue is more likely contract in basis, and that exposure in negligence you mention is what has them doing not what they feel they should, or want, but what they feel they are going to find a court raking them over the coals for if they fail to act voluntarily. If these businesses could simply escape liability, they would have long ago. There are legal advantages in acting in this manner for MMA, that is, attempting to do the right thing reduces their risk of punitive damages should they end in court. That does not mean all of a sudden they have sovereignty over someone elses asset.


That duty of care you argue MMA has, goes to the fitment of the airbag back in 1997 etc, and is why they have a duty to deal with it properly in 2020, but does not extend to unauthorised possession of the vehicle. Their exposure to negligence, does not extend to taking possession as they see fit. My assets do not become theirs simply so they can avoid their exposure. They would first need a court order, and they wont be getting one even if they tried. MMA cant simply decide to go around confiscating cars.

Again my example with HN has nothing to do with warranty, is about TRICKING people into signing documents they have not had looked over by legal representation, but I can assure you was drawn up by their legal reps. Its common as a tactic, and appears to be the tactic mentioned to which I responded.

I assure you, they temporarily hold a vehicle under a bailment, that is revocable at will by the owner, and the act of refusing to return it is the offence of conversion. Its a Tort. Its civil in nature not criminal, you get a solicitor, it does not need to be significant, the act itself is enough to satisfy the tort. A mere second is sufficient, just saying I can not return it is enough. How much damagfes can be reflected in the actual loss, not much, or may be punitive or exemplary in nature, and those could be significant. Trying to take advantage in this manner, with the kinds of sums of money the entire air bag recalls have involved, would encourage a judge to set an example IMO. That wont be pennys.

Conversion is an intentional tort consisting of "taking with the intent of exercising over the chattel an ownership inconsistent with the real owner's right of possession"

Please keep my comments in context of the comment to which Im replying too.

[pajflareo]

Youre too focused on warranty, its not a warranty repair.

Please keep my comments in context of the comment to which Im replying too.

Mine too mate, I never disagreed you could get get your car back - I asked "then what?" nor did I say it was a warranty repair.

[Tuba]

Mine too mate, I never disagreed you could get get your car back - I asked "then what?" nor did I say it was a warranty repair.

You did rely on warranty, by stating you see no means by which they are liable 20+ years down the track. And to add insult to injury, you took my example of that tactic of forcing a signature just to get back to square one, being more wide spread. It can only harm the owner, not assist.
You did disagree about their rights to detain the vehicle, implying at least that their exposure to negligence and their duty of care might justify their Tortuous act of conversion. It wont.

Context, and comprehension. Ill leave it there.

[pajflareo]

For anyone wondering about the document that MMA is asking you to sign, it is in accordance with their duties under the Federal Recall Compulsory Notice for Takarta Airbags and these are the relevant provisions from the Recall Notice (which is inforce Federal Legislation).

You can read the whole notice document here; https://www.legislation.gov.au/Details/F2018L00165

You don't have to sign this document and the effect of signing it and not signing it is described below in section 11(4). The documents I have seen are one page long and seek to comply with this section. If you dont sign it you will probably be contacted again at some point when the recall becomes mandatory.

Its worth noting that the current recall notice effects a different class of Takarta Airbag so I believe it is a voluntary Recall presently - meaning the Minister hasn't made it mandatory and strictly the provisions of the previous recall notice do not apply. MMA clearly anticipate it will become mandatory so they are following the procedures in the Notice it seems.


11(4) Where data collected under the requirements of subsection 11(1) includes information regarding a person who has advised the Supplier that they do not wish to have their Vehicle’s Affected Takata Airbag replaced, the Supplier must seek consent from that person to provide their name and contact details to the ACCC. Where the Supplier receives consent, the Supplier must provide the names and contact details of those persons and the relevant Vehicle. Where those person(s) do not consent to their name and contact details being provided to the ACCC, the Supplier must provide the ACCC with the VIN and other details of the Vehicle and note that the person(s) did not consent to provision of their details to the ACCC.

And from the Parliamentary memorandum for the above quoted section.

"Where a person advises a Supplier that they do not wish to have their Vehicle’s
Affected Takata Airbag Inflator replaced, sub-section 11(4) requires the Supplier to
seek the person’s consent to provide their contact details to the ACCC. Where the
person refuses consent, the Supplier must note this and provide the VIN and other
details about the relevant Vehicle to the ACCC."

[Tuba]

"replaced..." They arent replacing the air bag though as they have none, they no longer exist as an item. MMA are saying they want to buy the car back, and that is what people as yet are refusing to accept as the remedy to the issue. That item number to which youre signing your name, states you refused REPLACEMENT. No one refused that, signing that is a lie.

[pajflareo]

"replaced..." They arent replacing the air bag though as they have none, they no longer exist as an item. They are saying they want to buy the car back, and if you refuse to sell it to them they cant release it back to the owner.

Its exactly what HN tried then. Its not the same thing as what people are refusing. They are happy to have their airbag replaced with a perfectly safe airbag. No one is refusing to have it REPLACED, but they would be signing a document that declares they have refused REPLACEMENT.

Yeah I know they are not offering replacement, I am just pointing out where the wording of the form comes from and explaining why it is that way.

MMA clearly anticipate this currently voluntary recall will become mandatory in the near future.

When a recall becomes mandatory, suppliers have complied with their obligations under the compulsory recall if they followed the same steps as required by the compulsory recall when the recall was still voluntary.

See from the current compulsory recall;

"(4) A Supplier of Vehicles will be considered to have complied with its obligation under this Recall Notice to replace an Affected Takata Airbag Inflator even if the Affected Takata Airbag Inflator was not replaced as required by this Recall Notice if the ACCC is satisfied that:

(a) a Consumer did not present the Vehicle for replacement of the Affected Takata Airbag Inflator despite multiple notifications under a Communication and Engagement Plan approved in accordance with this Recall Notice or, where notification preceded this Recall Notice, by means (and using language) reviewed after this Recall Notice and approved by the ACCC as acceptable. For the purposes of this provision, a Consumer will be taken to have been adequately notified where a Supplier can show that the Consumer has been notified in accordance with an approved Communication and Engagement Plan. In accordance with the requirements of Schedule 2, proven notification of a Consumer may require multiple notification across multiple channels where necessary, or

(b) a Consumer could not be notified in circumstances where a Supplier properly implemented an approved Communication and Engagement Plan as required by this Recall Notice or, where notification preceded commencement of this Recall Notice, by means approved by the ACCC as acceptable; or..."

[pajflareo]

That item number to which youre signing your name, states you refused REPLACEMENT. No one refused that, signing that is a lie.

The current forms say "buy-back" instead of "replaced" IIRC

[Tuba]

Why would anyone agree to an unknown offer? There is no amount being offered yet. They are not refusing the buy back anymore at this stage than they are a replacement or repair.

Its still dishonest to tell people they can only release it if you sign. Or that MMA cant legally release it. Of course there is a thin veiled reason behind it, but none of that justifies or even excuses lying to gain the signature. Its more than an honest mistake.

[stumagoo]

The next big question - it is becoming pretty clear that most states will not legally allow retrofitting of a non airbag interior

HOWEVER

if someone turns up with a non airbag steering wheel --- what is the dealer able to (and legally required) do... they cant leave it on the recall list as it does not have the faulty airbag to be replaced.... are they required to notify authorities of an illegally modified vehicle (and if that is the case why have they not done so for the 1000s of illegally modified vehciles in the other recalls)

I dont believe dealers can defect a car - and if I am going there soley to ascertain if I do indeed have an airbag subject to recall, to find out I dont --- what are they to do....

[aussieguy]

The offer must be for like for like, so a 2000 pajero would be replaceable with a prado, now I have reduction gears, so they would have to replace or cost a vehicle with reduction gear, lift, tyres, bullbar etc etc.


Because they cannot replace your vehicle with another pajero because it will / or could be defective, red book would not be suitable, additionally they must compensate you for your time and inconvenience.


EDIT - assumption is they are under the same laws as insurance companies when valuing a vehicle that is written off, you do not have to accept their offer and can go to arbitration and even court if the offer is not satisfactory.

[pajflareo]

The offer must be for like for like, so a 2000 pajero would be replaceable with a prado, now I have reduction gears, so they would have to replace or cost a vehicle with reduction gear, lift, tyres, bullbar etc etc.


Because they cannot replace your vehicle with another pajero because it will / or could be defective, red book would not be suitable, additionally they must compensate you for your time and inconvenience.


EDIT - assumption is they are under the same laws as insurance companies when valuing a vehicle that is written off, you do not have to accept their offer and can go to arbitration and even court if the offer is not satisfactory.

Like for Like recall is only really for late model cars ie the Volkswagen dieselgate drama. They'd take your MY17 golf and replace it with a MY19.

[tomwithannl]

NL pajero in America.

January 24 2020

https://www.consumerreports.org/car-recalls-defects/mitsubishi-montero-recalled-for-new-takata-airbag-problem/

Like in the Australian media they are showing the wrong vehicle image but it is 1997 - 99 vehicles.
The interesting part is that if you read down to the "THE FIX' is says =
A replacement inflator is not yet available. When it is, Mitsubishi dealers will replace the faulty airbag inflators free of charge

Looks like Mitsubishi in America is a bit more sympathetic to it's vehicle owners.

They are still making the inflators in China with the same dimensions as the NL(where the company who bought Takata is based.)

https://cnjashine.en.made-in-china.com/product/RyXQIpmjnvkK/China-Jasd-12b-68mm-Between-2-Hole-Toyota-Honda-Nissian-SRS-Airbag-Inflator.html

But they cost a whole...............$10 each!


Tom

[stumagoo]

January 24 2020

https://www.consumerreports.org/car-recalls-defects/mitsubishi-montero-recalled-for-new-takata-airbag-problem/

Like in the Australian media they are showing the wrong vehicle image but it is 1997 - 99 vehicles.
The interesting part is that if you read down to the "THE FIX' is says =
A replacement inflator is not yet available. When it is, Mitsubishi dealers will replace the faulty airbag inflators free of charge

Looks like Mitsubishi in America is a bit more sympathetic to it's vehicle owners.

They are still making the inflators in China with the same dimensions as the NL(where the company who bought Takata is based.)

https://cnjashine.en.made-in-china.com/product/RyXQIpmjnvkK/China-Jasd-12b-68mm-Between-2-Hole-Toyota-Honda-Nissian-SRS-Airbag-Inflator.html

But they cost a whole...............$10 each!


Tom

no authority wants older cars on the road - its just one way to make us buy newer cars - and guess what --- it wont be long and I expect they will have issues forcing them off the road as well

[jools]

I've just had my NL checked by a mitsubishi dealer, with a very inconclusive result...

The VIN number is not on the list of recalled vehicles - it was built 2 months after the last affected NL, however the airbag in it is not the original - in 2017, about a year after I bought it, the horn started playing up and going off randomly - the mechanic found the problem was with the horn button in the steering wheel but the airbag was part of the horn assembly so the whole thing was replaced with a horn and airbag from a wrecker.

When I explained this to Mitsubishi they weren't interested because the VIN wasn't on the list, but they suggested taking it to a dealer to get the airbag checked, so I booked it in.

When the dealer started checking, they contacted Mitsubishi and were advised not to touch the car because it wasn't subject to the recall and there is no way of identifying if the airbag is at risk, unless we have the VIN from the donor vehicle. Serial numbers or part numbers on the airbag won't help, there is no list of these to check against.

Mitsubishi has told the dealer that the car is entirely the owner's responsibility because it's not on the recall list and the airbag was not purchased from Mitsubishi spare parts. Even if I was able to find the donor vehicle VIN and it was on the recall list, Mitsubishi won't do anything about it, it's my problem to resolve.

The dealer also noted that the airbag light was not working, so there could be another fault somewhere.

So now I'm stuck with a paj that may or may not have a faulty airbag and there's nothing I can do about it.. I have contacted the wrecker to see if they can track down the details of the donor vehicle and hopefully it's also not on the recall list, which would mean the airbag is probably safe.

But if it turns out the donor was on the recall list, I'm stuck with it, Mitsubishi won't help..

[izain71]

When I called my local dealership. they said I couldnt bring it in til I had the letter from Mitsubishi, I then called a 2nd dealership and and they said the same thing even though my NL appeared on the list. I then called Mitsubishi last week, they said dealers were now informed and you could take it without the letter, they said the letter will be sent in the next few weeks.