Kmart NZ must reimburse a Christchurch family $15,000 after play sand they purchased for their twins was found to contain tremolite asbestos.
The Disputes 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.
The 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.
Chrisp and Dingwall sought to engage constructively with Kmart but didn't want to settle confidentially, Consumer NZ said.
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," Chrisp said.
She said 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," she said.
Consumer NZ said this was the first Disputes Tribunal ruling in New Zealand concerning the recalled sand.
"This case shows just how difficult it can be to get redress when a product safety failure occurs," said Gemma Rasmussen, head of research and advocacy at Consumer NZ.
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," she said.
Kmart challenged some of the family’s actions as unnecessary or excessive.
Hawes rejected those arguments, finding the family’s response reasonable and justified and noting in one instance that they "had no choice".
Kmart 'carefully considering' Tribunal findings
In a statement, a Kmart spokesperson told 1News it had received the Tribunal's decision, and was "carefully considering the Tribunal’s findings".
"Last year, a number of retailers in New Zealand recalled sand-based toy products from their stores as part of a broader industry issue. When the matter became known to us, we acted quickly by removing affected products from sale, issuing recall notices and supporting customers with refunds and guidance on safely disposing of the products based on regulatory advice."
"Whilst the tribunal rejected the majority of the claimants' claim, we note they were awarded costs associated with cleaning conducted at their property and associated out of pocket expenses," they said.
"We remain focused on supporting our customers on this matter while being guided by evidence, expert advice and the relevant regulators."
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