Coroner criticises BMW & DVSA
The Inquest into the death of Narayan Gurung concluded on 8 June 2018 with a narrative conclusion in which Anna Loxton, the Assistant Coroner for Surrey (“AC”), concluded that the failure by BMW (UK) Limited to initiate a product recall in respect of BMW 3 Series vehicles contributed to Mr Gurung’s death. Having ruled that Article 2 applied, the AC also criticised the Driver Vehicle Standards Agency (DVSA) for its failure to require a product recall in the period prior to Mr Gurung’s death.
A John Williams appeared for the Insurers of Mr Gurung’s vehicle, instructed by Tom Stevenson at Keoghs.
On 25 December 2016 at about 0620, Mr Gurung was driving his Ford Fiesta car along the A31 Hog’s Back road when he unexpectedly encountered a stationary, unlit BMW 3 Series vehicle in the nearside lane of the dual carriageway. Mr Gurung swerved to avoid the BMW but, in doing so, he lost control of his car & collided with a tree. Mr Gurung suffered multiple traumatic injuries from which he died & his wife suffered serious personal injuries.
Police investigations revealed that the BMW car had suffered a sudden electrical failure which brought it to a halt in the road. The total electrical failure resulted from a defective electrical cable (the B+ cable) which was prone to damage from vibration & corrosion. The BMW owner had experienced prior difficulties with unlocking his car with the key fob but 2 garage visits in the 3 month period prior to the accident had failed to diagnose the precise problem & the defective B+ cable had not been replaced.
Based on Police evidence, the AC concluded that Mr Gurung had been travelling at about 60 mph & had had insufficient time to see & react to the reflectors on the stationary BMW.
In 2011 BMW AG learned of a defect in the B+ cable in 3 Series & other models which caused intermittent problems with the vehicle electrics. A product recall was undertaken in the USA & Canada instigated by the NHTSA. BMW explained this recall on the basis of a higher risk associated with the “hot climate” package in those vehicles which placed additional loading on the electrical system.
However, BMW recognised the risk extended to other vehicles &, in December 2011, it issued a PUMA measure to dealers describing how the defect could be repaired using the repair kit it had developed. In total, some 370,000 right hand drive vehicles had been manufactured with the defective part.
In late October 2014 the DVSA received the first of an “unusually high” number of Vehicle Safety Defect Reports from BMW owners who reported problems with their vehicle electrics including sudden total electrical failure. When contacted by the DVSA, BMW (UK) Limited argued that the particular problem was not a safety defect within the “Code of Practice on Vehicle Safety Defects & Recalls.” This defines a “safety defect” as follows:
“A safety related defect is a failure due to design and/or construction, which is likely to affect the safe operation of the product/aftermarket part without prior warning to the user and may pose a significant risk to the driver, occupants and others. This defect will be common to a number of products/aftermarket parts that have been sold for use in the United Kingdom.”
BMW argued that in every case: (a) the vehicle owner had a prior warning of the defect because the vehicle couldn’t be opened with the key fob or the engine would fail to start & (b) when these problems manifest, the owner would have matter investigated by a garage; the defect would be identified & the necessary replacement part fitted. This safety case was maintained over many months notwithstanding the fact (as the AC found) that some of Defect Reports showed: (a) that the problem did not always first manifest as anticipated & (b) the problem often went undiagnosed by garages & (in 1 case) by a BMW dealership. According to the AC, BMW’s assumptions were misplaced & its approach had the effect of potentially placing drivers at risk.
On 26/02/16 a meeting took place between representatives of BMW (UK) Limited & the DVSA. In this meeting, the DVSA representatives stated that their biggest concern was electrical cut-out on an unlit road & that, with no lights, other road users wouldn’t see the powerless car. BMW’s representative noted: “We don’t want a fatality“. Notwithstanding this, BMW (UK) Limited invited the DVSA to halt its investigation on the basis that the number of reports had slowed. Without undertaking any risk assessment or critical analysis of its own, DVSA agreed to suspend the investigation & review the matter later the same year – a decision which the AC considered inevitably meant that lives were put at risk. In examining the reasons behind the DVSA’s decision, the AC ruled that: (1) the evidence of DVSA’s principal witness as to whether it considered the defect fell within the Code was contradictory & not supported by any critical analysis & (2) it was only after Mr Gurung’s death that the DVSA unequivocally concluded that this was a safety related defect within the meaning of the Code.
A limited recall confined to 36,400 vehicles (petrol only, manufactured between Dec 09 – Aug 11) was instigated after Mr Gurung’s death although even then, BMW failed to explain properly why only this cohort had been selected. Indeed, it was only in the face of extensive adverse publicity following completion of the Inquest evidence (but prior to the Conclusion being handed down) that BMW widened the recall to include the remaining vehicles in the original cohort of 370,000.
The AC’s Findings & Conclusion
In her ruling, the AC stated that the index defect was known about by both BMW (UK) Limited & DVSA but “appropriate action was not taken to address this.” She added: “The evidence from the DVSA raises serious concerns as to how the Agency responds to Vehicle Safety Defect Reports highlighting safety related issues when the manufacturer or the distributor of the vehicle does not agree there is a safety related problem.”
As regards the Code of Practice, the AC ruled that DVSA misinterpreted the concept of “prior warning” & that this misinterpretation delayed the DVSA in requesting a recall even though it had forseen the precise circumstances of the death that in fact occurred.
In ruling on the Family’s submission that Unlawful Killing should be considered as a Conclusion & the Inquest adjourned to allow investigation by the Police, the AC ruled that, whilst all of the other elements of Corporate Manslaughter were present, she was not satisfied (to the required standard of proof) that BMW (UK) Limited’s failures amounted to gross negligence. The rationale here was that BMW (UK) Limited’s failings were not “gross” given the fact that the Industry Regulator was aware of the problem but had not declared the defect to be a “safety defect” within the meaning of the Code & had not required BMW (UK) Limited to take any additional action prior to Mr Gurung’s death.
Regulation 28 Reports
In light of the extended recall issued by BMW (UK) Limited, the AC declined to issue a Prevention of Future Deaths Report to BMW.
The AC is however issuing a Prevention of Future Deaths report to the DVSA & the Secretary of State for Transport highlighting a number of areas of concern; viz:
- There is no set Protocol to be implemented by the DVSA for investigating, managing & responding to safety related defects within a reasonable time-frame once potential areas of concern have been highlighted.
- There is no internal Guidance within the DVSA to assist with interpreting the Codes of Practice.
- There is a lack of any written critical analysis undertaken by the DVSA of the reported defect & how this might give rise to safety related incidents.
A full copy of the AC’s ruling can be viewed here.
Key Take-Aways / Comment
Some particular features of the case are worth high-lighting.
- The scope of the Inquest was determined at 2 PIRs &, from an early stage, included consideration of what had been known & publicised about the index defect. Given the involvement of the DVSA, the AC ruled that DVSA should be made an Interested Person & she made disclosure orders against it relating to communications it had with BMW (UK) Limited prior to the accident.
- The AC heard submissions on the application of Article 2 at the PIRs but postponed her ruling on the matter until she had seen evidence & disclosure from the DVSA. Following the evidence of the DVSA’s principal witness on Day 1, the AC ruled that Article 2 applied as there was a potential breach of the general duty on the State to protect life.
- At the 2 PIRs BMW (UK) Limited resisted applications for disclosure of certain classes of documents such as risk assessments on the surprising basis that these documents had been produced by BMW AG & that it did not have copies of the documents & could not insist on BMW AG supplying copies. The AC nonetheless made an Order for disclosure of all risk assessments relating to the defect, making it clear that if disclosure was not provided, she would hear submissions on whether BMW AG could & should be added as an Interested Person – it being argued by BMW that there were potential jurisdictional issues. In the event, BMW (UK) Limited disclosed certain risk assessment documentation.
- BMW’s safety case was seriously flawed. A driver who experienced difficulty opening his/her car would not sensibly anticipate that this intermittent problem might later manifest itself as a sudden, total electrical failure. Further, brief perusal of the Defect Reports showed that garages were not diagnosing & repairing the problem straight away – something which was itself unsurprising given BMW knew about, but had not publicised, the fault. The DVSA’s failure to reject BMW’s flawed safety case & its acceptance of BMW’s erroneous suggestion that the number of reports had slowed & that the investigation should be postponed were serious failings. These were compounded by its failure to insist on a recall of the full cohort of 370,000 vehicles in the 17 month period between the index accident & the Inquest.
- The Inquest attracted widespread publicity in the national press (Times/Daily Telegraph/Daily Mail) & on TV (BBC Watchdog & BBC/ITV news). Between the conclusion of the evidence (30/04/18) & the handing down of the Conclusion (08/06/18) BMW (UK) Limited decided finally to initiate a full recall of affected vehicles in the UK. This change of heart was not explained but it seems likely that it was influenced by the adverse publicity &/or the Family’s submissions (ultimately rejected) that the AC should consider a conclusion of Unlawful Killing – it being finally recognised by BMW that another similar fatality would render BMW (UK) Limited very vulnerable to a charge of Corporate Manslaughter.
- In 2017 BMW Group’s revenue was 99 Billion Euro with a net profit of 8.7 Billion Euros. The cost of a UK recall is very modest in comparison but costs would increase significantly if a Europe-wide recall was required. As to this, BMW’s present position appears to be that there are material differences between right-hand drive & left-hand drive vehicles & that a Europe-wide recall of left-hand drive vehicles is not required & has not been demanded by the European Regulator. (In evidence, BMW sought to explain the USA/Canada recall of left-hand drive vehicles on the basis they were fitted with the “hot climate” package – although, when pressed on the point, BMW’s witness said he could not definitively confirm this was the case for all of the vehicles that were recalled in those countries).
- Aside from the misplaced argument regarding “prior warning”, BMW (UK) Limited has also sought to explain its decision not to implement a UK recall or notify vehicle owners of the defect by reference to the fact that the RAPEX risk assessment it undertook in February 2016 regarding the defect (using the EU-specified general risk assessment methodology) classified the risk of fatal injury as “Low”. In her ruling, the AC was dismissive of an approach to safety which depended only upon the risk assessment process whilst ignoring wider (& in some cases, prescient) concerns expressed by customers about the possible consequences of the defect. Adherence to regulatory processes & procedures which might, of themselves, suggest a particular risk is acceptable whilst, at the same time, ignoring other evidence that points in a different direction is one of the issues already emerging from evidence submitted to the Grenfell Inquiry & remains a common feature of safety cases, both past & present.