BMW (Australia) Ltd had supplied vehicle jacks and vehicle owner manuals that failed to comply with the mandatory consumer product safety standard for vehicle jacks , the Federal Court declared late yesterday.
The declaration follows an Australian Competition and Consumer Commission action.
"The jacks and vehicle owner manual were supplied to consumers in conjunction with their purchase of a new BMW vehicle", ACCC Chairman, Mr Graeme Samuel, said today. "The jacks are also sold separately; mostly as after-market goods to consumers or repairers".
The ACCC alleged that during 2002 BMW supplied vehicle jacks and vehicle owner manuals without the legally required warning notice and safe usage instruction. The required instruction warns consumers not to get under a vehicle that is supported only by a jack and to use vehicle supports stands in such a situation.
"BMW's notice and usage instructions failed to mention the use of vehicle support stands at all".
In granting all the relief sought by the ACCC, Justice Marshall concluded:
- the ACCC had made out its case that the BMW specific vehicle jack did not comply with the mandatory standard;
- BMW had not shown that the mandatory standard was invalid;
- the mandatory standard was legally effective and that it fell to BMW to comply with it; and
- BMW had failed to comply with the mandatory standard.
In declaring that BMW had breached the Trade Practices Act 1974, Justice Marshall also ordered that:
- BMW be restrained for a period of three years from supplying vehicle jacks and usage instructions that do not comply with the mandatory vehicle jack standard;
- BMW appoint an independent auditor to audit and report its trade practices compliance program annually for three years;
- BMW recall non-complying vehicle jacks and usage instructions. The recall is to be effected publicly in major newspapers throughout Australia and by identifying all affected BMW customers and advising them separately in relation to the recall;
- service bulletins be issued to authorised BMW dealers;
- the company provide the ACCC with a written audit report detailing BMW’s adherence to the recall program ordered; and
- BMW publish a related notice on its Internet website.
Justice Marshall further ordered that BMW pay the ACCC's costs in the proceedings.
Earlier this year the ACCC accepted court enforceable undertakings from vehicle importer/distributors Daewoo, Audi and Proton in relation to supply by them of vehicle jacks that did not comply.
BMW claimed before and throughout the court proceedings that its warning to consumers was better than the one prescribed in the mandatory safety standard.
In rejecting this Justice Marshall observed that there was no conclusive evidence that the warning on BMW's jacks would more effectively prevent people from getting under a vehicle and injuring themselves. He noted also that it remained possible that on reading BMW's warning people might still get under a BMW by using makeshift supports other than the specific vehicle jack or vehicle support stands.
Justice Marshall commented that it is for the experts who wrote the standard rather than the Court to better resolve the issues of safety in relation to the use of vehicle jacks. He also noted that BMW had made a request to Standards Australia to amend the warning in 1995 and that Standards Australia determined that the warning should remain as written.
"At the end of the day the simple fact is that BMW's warning did not comply with legally prescribed requirements, including the warning about the use of support standards", Mr Samuel said.
"The court has reinforced that compliance with the prescribed requirements of mandatory standards (i.e. the law of the land) is not optional or discretionary".