The deadly Takata airbag: what did the ACCC know, and when did it know it?

Over the past 18 months, a coroner’s court has been grappling with a true suburban mystery: how could the driver of a Honda CR-V have bled to death in the front seat of his car after nothing more than a minor bingle in a quiet street in outer Sydney?

Normally the driver would have simply walked away, but in this case the man, 58-year-old Huy Neng Ngo, received the equivalent of a shotgun wound through the base of his neck. 

A Takata airbag which was meant to save his life instead exploded on impact from the centre of his steering wheel, shooting a metal fragment the size of a 50 cent piece into his spine, shattering his vertebrae and causing blood to gush uncontrollably from a severed artery as Ngo’s wife made frantic attempts to staunch the bleeding using her bare hands.

The death of Huy Neng Ngo in July 2017 marked a turning point in how Australia’s consumer safety authorities handled the long-running Takata airbag scandal. It jolted the heavy hitters of consumer safety, the Australian Competition and Consumer Commission (ACCC), to take over the running of Australia’s biggest-ever car safety recall, using its powers to compel car manufacturers to produce commercial-in-confidence information and recall cars with suspect airbags.  

Until that point, the agency with the legal authority had been content to look on — officially it was an “observer” — with the recall left largely in the hands of the car industry itself, with light touch monitoring from safety regulators in the Department of Infrastructure and Regional Development (DIRD). DIRD is the specialist agency policing the safety of cars sold in Australia, but it has been more accustomed to dealing with faulty tail lights and fuel gauges rather than a potentially lethal product installed at chest and neck level in millions of Australian cars.

Two regulators but no action

Beyond the death of one man, the NSW coroner is now examining the system of safety regulation that allowed the fatal incident to happen, given there was not just one but two Canberra safety regulators involved. At the centre of the coroner’s investigation is a simple question: should the ACCC have intervened sooner to order a compulsory recall, especially given what was already known about the risk Takata airbags posed to consumers? 

At the time of Ngo’s death, Takata airbags had already killed four people in Malaysia and 12 people in the United States. Dozens more had received serious face and neck injures. 

Among those killed was Carlos Solis, a 35-year-old resident of Houston, Texas, in circumstances almost identical to the accident that killed Ngo in Sydney, but more than two years beforehand. Solis bled to death in the front seat of his Honda, following a minor bingle that saw his airbag fire a piece of metal the size of a hockey puck into his neck. Police at the scene first thought he had been shot.

As well, evidence gathered by US authorities — and shared with Australia — had led the Americans to issue compulsory orders to car makers 18 months before the ACCC acted.

What hasn’t been revealed before is that there were at least seven Takata airbag incidents in Australia before the death of Ngo led to the compulsory recall. Up until now, only one of these has been known publicly — an accident in Darwin which severely injured a 21-year-old woman after her airbag exploded, three months before the accident that killed Ngo.

Internal ACCC papers obtained by Inq reveal that four, and possibly more, of these incidents were known to car manufacturers, but that the ACCC — the one body that can recommend a compulsory recall — only became aware of them after it became involved and compelled car manufacturers to hand over what they knew during a months-long investigation.

The papers reveal that these previously unreported incidents occurred over a period of 12 months before the ACCC became involved in the recall.

In addition, the internal papers make it clear that there was a separate and highly significant incident which was known to both the ACCC and DIRD, and that both safety regulators agreed to keep the incident secret, seemingly with the knowledge of the car manufacturers’ lobby group, the Federal Chamber of Automotive Industries.

A ‘commercially sensitive’ development

In September 2016 — in what the ACCC calls Australia’s “first known misdeployment” — a Takata airbag exploded after it had been removed from a 2004 model BMW. The ACCC’s papers report that, such was the force of the explosion, “a 5 cm long piece of metal from the rupture was found on the roof of a nearby building”.

The faulty airbag was of the so-called “alpha” type, considered to have an especially high risk of exploding on impact — now said to be a 50/50 chance — compared to other faulty Takata airbag types. Despite the extreme risk, however, BMW was unable to tell Canberra safety officials exactly how many alpha airbags in its Australian cars were yet to be replaced, other than estimating that it was in the “thousands”.

DIRD officials labelled the BMW explosion as a “significant development for all of us”. The internal document shows that safety officials pondered whether it should mean a change in strategy to “identify any way in which the department or the ACCC might reduce impediments” to the recall — a reference to the ACCC using its compulsory powers. The document also raised the possibility of “adapting our communications approach”, given that drivers had, apparently, not responded to BMW’s recall attempts.

Yet far from going on the front foot and introducing a campaign to raise public awareness about the dangers, the internal document indicates that the safety regulators agreed to BMW’s request to keep the 2016 incident quiet at a meeting of the Takata Airbag Working Group, a joint group of regulators and manufacturers set up with the express purpose of monitoring risk and taking action. 

“The manufacturer has advised that this is a commercially sensitive matter,” an official minute warned, “and so I would ask that there is no speculation on the make and model of the vehicle in question”.  BMW, according to the notes, had been concerned that there was “a chance that info will make its way into the public domain”.

In a statement, the ACCC told Inq that BMW “noted” that the incident involved one of its makes during Takata Airbag Working Group discussions. “While we cannot comment on specific communications,” an ACCC spokesperson said, “we note that the main focus for the Department (and the ACCC) was on whether the steps being taken by BMW were satisfactory.”

The ACCC document also notes there was yet another Takata airbag rupture in September 2016 which they had not been made aware of at the time.

Inq has also established that at the same time as the BMW incident (and subsequent silence), one ACCC safety official was so concerned about the commission’s lack of action on dangerous products that he blew the whistle and put his concerns in writing, citing the Takata airbag, via an internal process called a Public Interest Disclosure (PID). That disclosure went to the executive level of the ACCC, but no action was taken and the whistleblower soon left the organisation.

In April 2017, six months after the BMW and other airbag ruptures, a 21-year-old Darwin woman suffered horrific head and brain injuries when the airbag of her Toyota RAV4 exploded following a minor collision. The rupture, which became publicly known as the first Takata airbag incident, sent a metal fragment through the woman’s left eye, where it travelled across the front of her brain. She has been left blind in one eye and incapacited for life. Her family remains too distraught to discuss the accident.

Don’t die wondering

Despite these incidents, the car industry continued to be in charge of its own recall regime, until another exploding airbag killed Ngo. The subsequent ACCC investigation revealed that in addition to the four incidents the industry had kept secret, there had been other suspicious events: “A few other suspected incidents have been identified by the ACCC,” the investigation notes, “but these have either been dismissed as not resulting from a misdeployment or otherwise not confirmed.”

With a compulsory recall taking effect at the beginning of 2018, car manufacturers have now replaced a total of 3.5 million airbags in more than 2.5 million vehicles across Australia. As part of the compulsory recall, car manufacturers last year launched a “Don’t die wondering” campaign to dial up public awareness of the risk.

Despite these steps, as of October this year there were still 20,000 cars with “critical” airbags, regarded as so dangerous that the ACCC has warned drivers they should stop driving immediately.  Just on 8,000 — or 40% — of those cars are BMWs. 

The ACCC has added a further urgent warning on what it says is a newly discovered type of faulty Takata airbags affecting more than 12,000 BMW cars. The ACCC disclosed that the airbags were responsible for the death of one more driver and the serious injury of another — both occurring this year. BMW Australia is now looking to buy back affected cars.

Inq approached BMW for comment on the circumstances surrounding the 2016 incident involving a faulty Takata airbag but the company has not responded.

The ACCC and the Department of Infrastructure have declined to comment on whether or not a compulsory recall should have been enacted earlier, citing ongoing hearings by the NSW Deputy Coroner.

Tomorrow: confessions of a whistleblower…