A QUT law academic says Australian consumers need new evidentiary laws to protect them against 'lemons' - defective new vehicles that require multiple repairs.
QUT Commercial and Property Law Research Centre's Professor Stephen Corones in his submission to the Queensland Parliament's Legal Affairs and Safety Committee said there was a need for new evidentiary laws to cover new cars that turn out to be 'lemons'.
He said that because new vehicles were highly computerised and complex, proving a car was defective was beyond the means of ordinary consumers.
"One remedy would be to set up an independent assessor to assist in identifying the cause of the fault," Professor Corones said.
"As it stands, the onus of proof is on the consumer to prove in court the defect in the vehicle that constitutes a major failure to comply with a consumer guarantee under Australian Consumer Law.
"If the consumer cannot do this, the court has no choice but to dismiss the application. The court has no power to conduct its own independent investigation.
"For the ordinary consumer this would mean gaining access to the relevant diagnostic equipment to prove a major defect, a difficult and expensive exercise, and an expert's opinion which could be countered by the manufacturer's expert.
"Car manufacturers don't have to provide consumers with technical information, software codes or, indeed, any information they might have concerning common problems with particular models or batches of vehicles.
"If the vehicle is under warranty they may attempt multiple repairs or replace it but consumers are not entitled to a refund unless they can prove the defect constitutes a major failure."
Professor Corones said 'lemon' laws were particularly important for vehicles because they were extremely expensive and sophisticated.
"Car owners can't afford the down time of having their car off the road for repeated repairs. We've heard of situations where cars have been off-road for repairs in the workshop for up to 60 days," he said.
"Some car owners take to social media but it seems vehicle manufacturers are prepared to wear the adverse publicity and they know people can't afford to take them to court."
He said other protections that could remedy the situation were the setting of explicit rules about what constitutes a major failure.
"For example, if a fault cannot be repaired after three attempts it could be deemed to be a major failure.
"Setting a reasonable period would also help - for example, after three attempts and three months the consumer is automatically entitled to a refund.
"Another possibility is reversing the onus of proof. Since the manufacturer is in the best position to diagnose the problem, the law could provide that the manufacturer must prove the vehicle was of acceptable quality and fit for purpose at the time of supply.
"The law must recognise that without extra protection, a consumer has little prospect of success in the courts because of the near insurmountable problems of proof.
"Of the four reported cases in Queensland taken to court since January 2011, three have been dismissed for failing the burden of proof. In NSW 14 of the 20 reported cases for defective motor vehicles were dismissed for failure to prove a defect."
Media contact: Niki Widdowson, QUT media, 07 3138 2999 or n.widdowson@qut.edu.au.
After hours: media@qut.edu.au or 0407 585 901.
