Kmart has been ordered to pay a family in New Zealand’s Christchurch $12,400 after its sand toys were found to contain tremolite asbestos.
The Disputes Tribunal ordered Kmart NZ Holdings Ltd to reimburse Elle Chrisp and David Dingwall for the costs associated with the contaminated sand, including asbestos testing, relocation costs, replacement of household items, property remediation and loss of amenity.
Asbestos is a substance proven to increase the risk of developing cancer. The main way people are exposed to asbestos is by inhaling air containing asbestos fibres.
The decision marked a victory for the couple following a nine-month legal battle against the retailer.
Last November, Kmart, along with several other retailers across Australia and New Zealand, issued recalls of children’s play sand products after laboratory tests detected traces of tremolite asbestos.
According to Consumer NZ, 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,” said 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.”
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. It also rejected Kmart’s arguments that some of the family’s actions were unnecessary or excessive, finding the family’s response reasonable and justified and noting in one instance that they “had no choice”.
Consumer NZ said thousands of New Zealand families had purchased the recalled sands but were told the product was low risk and only received a refund.
This decision shows consumers may be able to recover costs when a recalled product is unsafe, the organisation added.
