NZ News
Disputes Tribunal orders Kmart to pay Christchurch couple over contaminated sand
Kmart has been ordered to pay thousands to a Christchurch couple whose toddlers played with asbestos-contaminated sand.
Last year, the retail giant was part of a nationwide recall of coloured play sand products, after they tested positive for tremolite – a form of asbestos associated with higher cancer risks at low exposure levels.
Elle Chrisp and David Dingwall took Kmart to the Disputes Tribunal, seeking re-imbursement for costs associated with asbestos contamination and future medical monitoring.
The Christchurch pair claimed $60,000 in total.
In a recent decision, the tribunal ordered Kmart to pay the family $15,185.42 to cover costs associated with asbestos testing and remediation.
It found the play sand purchased was unsafe, not fit for purpose and not of acceptable quality under the Consumer Guarantees Act.
Supplied / Screenshot
Elle Chrisp said the family had bought 4kg of the sand and it was in their backyard where their three-year-old twins played with it.
But she said from time to time the sand would end up inside the house as well as it came in on their shoes and clothes.
“We had our sand independently tested, it came back with tremolite asbestos, we were phoned and the advice we were given was to evacuate our home immediately taking just the clothes on our back, nothing else, leaving everything behind.”
That was because further environmental testing was needed to find out exactly where the asbestos contamination was, she said.
Fortunately the testing showed the contamination was limited to backyard area, she said.
RNZ / Cole Eastham-Farrelly
The family incurred a number of costs in this process, she said, including lab testing, having to dispose of a lot of items such as toys that were stored outside and remediation to make the outdoor area safe.
The family was also not able to use the outdoor area for 67 days until it was remediated, she said.
Chrisp said they took the case to the tribunal because the product was unsafe and that was what they wanted to establish.
“We weren’t seeing that communicated anywhere, parents were told that they were overreacting, it was low risk, it was never low risk, it was never safe and that was what the decision came to.”
She said she was pleased that Kmart had to attend the tribunal hearing.
“Because we did not have any engagement from them at all prior to going to the tribunal and that’s why we were so thankful the disputes tribunal process existed because it put us on an even footing with a huge company who otherwise could have ignored us.”
The tribunal process which doesn’t use lawyers was great because it was built for ordinary people to be able to get a fair outcome, she said.
Chrisp said they were very happy with the outcome of their tribunal case.
“Ultimately for us it was wanting a public ruling that this is enforceable.”
Referee Cynthia Hawes said the sand should not have been offered for sale.
“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.”
The claim for medical expenses was not allowed.
A Kmart spokesperson said the product recall was 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.”
They said the company was reviewing the tribunal’s decision.
“We remain focused on supporting our customers on this matter while being guided by evidence, expert advice and the relevant regulators.”
Consumer NZ head of research and advocacy Gemma Rasmussen said Chrisp and Dingwall spent months gathering evidence, and forked out thousands of dollars to take Kmart to the Disputes Tribunal.
She said the ruling found “firmly in the family’s favour”.
“It is completely reasonable for them to undertake everything that they did from testing to vacating their home, and Kmart should have to pay for that.”
Rasmussen said the ruling did not set a precedent, but it sent a clear message and she hoped other families were encouraged to make claims.
However, she said the order ultimately showed the difficulty in getting redress following a product safety failure.
She said current laws were too reactive and regulatory reform was needed.
“Our market place has dramatically changed from major retailers like Kmart selling thousands of goods to people shopping on platforms like Temu and Ali Express, and we really need the government to take this a little more seriously.”
Minister of Commerce and Consumer Affairs Cameron Brewer has been approached for comment.
Source: RNZ
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