A Christchurch couple has won a nine-month battle with Kmart after play sand they purchased for their twins was found to contain tremolite asbestos.
The Disputes Tribunal has ordered Kmart NZ Holdings Ltd to reimburse Elle Chrisp and David Dingwall just over $15,000 for a range of costs associated with the contaminated sand, including asbestos testing, urgent relocation costs, replacement of household items, property remediation and loss of amenity.
Consumer NZ understands this is the first Disputes Tribunal ruling in New Zealand concerning the recalled children’s sand.
“This case shows just how difficult it can be to get redress when a product safety failure occurs,” says Gemma Rasmussen, head of research and advocacy at Consumer NZ.
“Elle and David spent nine months gathering evidence, forking out thousands of dollars and taking Kmart to the Disputes Tribunal. It is reassuring to see them finally receive acknowledgement that the steps they took to protect their children were reasonable and justified after testing, which they commissioned themselves, confirmed asbestos in the sand.”
Kmart had insisted that the sand presented a “low risk”, but this assessment relied on a supplier-commissioned report relating to a different product. That information was subsequently used in a recall notice published by MBIE.
The Tribunal found that the play sand purchased by the family was unsafe, not fit for purpose and not of acceptable quality under the Consumer Guarantees Act.
Referee Cynthia Hawes said the sand should not have been offered for sale to consumers. “I do not think that any reasonable parent, acquainted with the fact that the moulding sand contained asbestos, and regardless of the quantity or proportion in the sand, would purchase it for his or her child to play with.”
Kmart challenged some of the family’s actions as unnecessary or excessive. Referee Hawes rejected those arguments, finding the family’s response reasonable and justified and noting in one instance that they “had no choice”.
Chrisp and Dingwall sought to engage constructively with Kmart but were resolved not to settle confidentially. The couple maintained that the safety of New Zealand children was a matter of public interest and sought a public Disputes Tribunal ruling.
“We just wanted it on the record,” says Elle Chrisp.
Chrisp says the ruling was important because the family had repeatedly been made to feel they were overreacting.
“If you’ve been told by Kmart that recalled play sand was low risk, if you were made to feel like you were blowing things out of proportion, a Tribunal has now said otherwise. “We took on Kmart at the Tribunal because they should have accountability for selling an unsafe product. It is important to us that other families see this ruling and feel encouraged to persevere in seeking acknowledgment and compensation. If Kmart dismissed your claims, that doesn’t have to be the end of it.”
Elle Chrisp, David Dingwall and their two children
Guidance for other families who have purchased the recalled sand-based products
Disputes Tribunal rulings do not set legal precedent, but this is a promising outcome for any consumers who have purchased a recalled play sand product and want to pursue Kmart for any costs they’ve incurred.
Thousands of New Zealand families have purchased the recalled products. Many were told the product was low risk and may not have received anything from Kmart, other than a refund. This decision shows consumers may be able to recover costs under the Consumer Guarantees Act when a recalled product is unsafe.