Volkswagen accused of attempting to 'hoodwink' consumers over emissions cheating software

By consumer affairs reporter Amy Bainbridge

Volkswagen has been accused of pressuring drivers to accept a software upgrade for vehicles implicated in the global emissions scandal, or face the possibility of no compensation.

Key points:

• Some drivers asked to sign waivers if they refused software fix offered as part of a recall
• Volkswagen says original version of waiver was handed out in error
• ACCC chairman says waiver is "outrageous" and fails to explain implications of software fix

The company asked some drivers to sign waivers if they refused the software fix being offered as part of a voluntary recall.

One document, headlined "Reporting Form for Recall Refusal" said if drivers declined the software upgrade they would "accept liability for any loss or damage that occurs as a result of your decision".

"Neither Volkswagen nor the authorised dealer can be held responsible for any damage or loss suffered as a result of the recall action not being performed on your vehicle," it read.

The ABC is aware of at least four versions of the document, with some using different language which states customers do still have rights under Australian Consumer Law if they refuse the upgrade.

The waivers are contained in a new affidavit filed in the Federal Court today, as part of a class action run by Maurice Blackburn on behalf of affected drivers.

Maurice Blackburn lawyer Jason Geisker alleged some dealers had also told customers they could not have their cars back unless they signed the form.

"We're hearing stories that range from threats to not performing warranty work, through to examples where customers have actually had their car detained by the dealer until such time as they agree to sign this acknowledgement form," Mr Geisker said.

"It's just a stunning document — it really does put consumers in a position that they are forced to take up this voluntary recall and if they don't, they forever give up any rights they have against the company.

"Plainly that is not proper, plainly it's not enforceable, and plainly when Volkswagen sent those documents out it was trying to hoodwink consumers.

"This sort of behaviour is simply unacceptable."

A spokesman for Volkswagen said the original version of the waiver was handed out in error.

"Unfortunately, it appears that contrary to Volkswagen's instructions, a staff member at one dealer has handed out a form that was withdrawn and replaced nine months ago by one that more clearly states the owner's rights," a spokesman said.

"Dealers use such forms so that a reliable record of the recall can be kept.

"The recall is strongly recommended by Volkswagen but is voluntary — and the owner waives no legal rights if they choose to refuse it.

"As of last week more than 13,000 vehicles in Australia have had the software solution performed, in addition to more than 3 million in Europe."

Driver says Volkswagen was 'underhanded'

Tasmanian Volkswagen driver Andrew told the ABC that when he booked his car in for a service, the dealership appeared to be planning to perform the software upgrade without his knowledge.

"I'd describe is an upgrade by stealth," he said.

"That's the bit that rankles, the fact that they didn't mention it to me — I had to raise it with them."

He said he did not want the software fix because he was worried it would affect the performance of his car.

"I didn't want them messing about with the engine performance to degrade what I have enjoyed for the last nine years," he said.

"We bought another [newer] diesel Volkswagen Golf a couple of years ago, but the comparison between the two vehicles show that the nine-year-old Eos has a much more sparkling performance than the supposedly much more powerful Golf."

ACCC describes waiver as 'outrageous'

The ABC sent copies of the waivers to the Australian Competition and Consumer Commission (ACCC) and chairman Rod Sims described the waiver as an "outrageous" document.

"I don't think I've seen anything quite like this in quite a long time — to present this to consumers without any understanding of the full implications of the fix or without explaining what the liability is," Mr Sims said.

"We would urge anyone who's been presented with one of these forms to contact us, at accc.gov.au, and let us know what their experience has been." 

Mr Sims said Volkswagen had not explained what the implications of the fix were.

"Does it affect the performance of the vehicle? It's not clear from that form — it's not clear whether people have had that explained to them, so they're being asked to accept a fix possibly without understanding what the implications are," he said.

"Secondly, they're not being told what liability they're taking on.

"Is it, for example, that your car might not meet design rules and might not be able to be driven on the road?

"That allegation is one that we're making and is at the heart of the court case that VW are vehemently defending."

In October, the ACCC's case will be heard jointly with the two class actions being run by Maurice Blackburn and Bannister Law.

Volkswagen told the ABC cars which have had the free software upgrade have been "confirmed by the Australian Government as conforming to relevant emissions standards".

"Solutions have now been approved by the Australian Government for the majority of affected Australian Volkswagen vehicles," the spokesman said.

"The communications with customers inviting them to come to a dealership and have the update implemented voluntarily have been finalised in consultation with the ACCC."

How VW's 'defeat device' worked

How did German carmaker Volkswagen rig emissions tests in diesel-powered vehicles and fool US regulators?

http://www.abc.net.au/news/2017-02-22/volkswagen-accused-of-attempting-to-hoodwink-consumers/8292660