A Christchurch couple whose toddler twins played with sand that turned out to contain asbestos have been awarded just over $15,000 by the Disputes Tribunal, in what Consumer NZ believes is the first ruling of its kind in New Zealand over the recalled children’s product.
The tribunal ordered Kmart NZ Holdings Ltd to reimburse Elle Chrisp and David Dingwall $15,185.42 for the costs they ran up after the contamination came to light. The award covers asbestos testing, the cost of moving out of their house in a hurry, replacing household items, remediating the property and what the tribunal called loss of amenity. The couple had claimed $60,000 in total, a figure that included future medical monitoring for their children. That part of the claim was not allowed.
Referee Cynthia Hawes found the sand was unsafe, was not fit for purpose and was not of acceptable quality under the Consumer Guarantees Act, and said it should never have been put in front of shoppers. “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 had argued that some of what the family did in response was unnecessary or excessive. Hawes rejected that, finding their response reasonable and justified, and noting in one instance that the couple “had no choice”.
The case goes back to November 2025, when laboratory testing found tremolite asbestos in coloured sand sold for children to play with. Kmart pulled four lines from sale, its 14-piece Sandcastle Building Set and its Blue, Green and Pink Magic Sand, after more than 67,000 units had been sold here. Tremolite is a particularly dangerous form of the mineral. It crumbles easily into fibres small enough to inhale and is linked to mesothelioma at very low levels of exposure. The recalls eventually widened to around 20 brands and more than 20 separate notices, making it one of the biggest consumer product recalls the country has seen.
Through much of that period Kmart’s position was that the sand presented a low risk. Consumer NZ says that assessment rested on a report commissioned by a supplier that related to a different product, and that the same information was then carried into a recall notice published by the Ministry of Business, Innovation and Employment. WorkSafe took a different view at the time, classifying the contaminated products as friable asbestos containing material, the most serious tier, which requires a licensed Class A remover to handle any clean-up.
The low risk framing was undercut again in July, when a team led by Associate Professor Terri-Ann Berry at Auckland University of Technology tested whether the sand actually released fibres during ordinary play. A licensed removalist worked inside a sealed chamber, drawing in the sand, scooping it and pushing toy cars through it. Airborne asbestos fibres turned up in 90 percent of the craft sand samples. Earlier official advice had suggested fibres were unlikely to become airborne unless the sand was crushed or ground up.
Consumer NZ head of research and advocacy Gemma Rasmussen said the outcome was welcome but the road to it was far too long. “This case shows just how difficult it can be to get redress when a product safety failure occurs,” she said in the organisation’s statement on the ruling. “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.”
Chrisp and Dingwall could have taken a quiet settlement. They chose not to, and pushed for a public decision instead. “We just wanted it on the record,” Chrisp said. She said the ruling mattered because the family had been made to feel, repeatedly, that 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,” she said. “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.”
A Kmart spokesperson told RNZ the recall was part of a broader industry issue and that the company had moved quickly once it knew. “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 is reviewing the tribunal’s decision and said it remained “focused on supporting our customers on this matter while being guided by evidence, expert advice and the relevant regulators”.
Rasmussen said the ruling did not set a legal precedent, because Disputes Tribunal decisions do not bind other cases, but that it sent a clear message and she hoped other families would be encouraged to lodge their own claims. She also used the result to argue that the rules governing what gets sold here are too slow to catch problems. “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,” she said. The Commerce Commission has an open investigation into what consumers were told about the products during the recall period. Commerce and Consumer Affairs Minister Cameron Brewer has been approached for comment on the ruling.
For the thousands of households that bought one of the recalled products, the practical significance is that a family has now recovered clean-up costs rather than just a refund. Many were offered nothing more than their money back. The Disputes Tribunal can rule on claims up to $30,000, charges a modest filing fee and does not require a lawyer, and hearings are usually held within weeks. Chrisp and Dingwall have offered to share their evidence and paperwork with other parents who want to try the same route, an offer they made when they first filed.
Anyone who still has recalled sand at home is advised to seal it in an airtight container, double bag it in thick plastic, label it as asbestos contaminated material and arrange licensed disposal. It should not go in the kerbside bin, and loose grains should never be swept or vacuumed. The affected products are listed on the Product Safety New Zealand website.
Did you buy one of the recalled sand products, and did you get anything more than a refund out of it? Tell us in the comments below what happened when you asked Kmart to cover your costs.
This article was written by AI, briefed to report the facts, hopefully without some of the bias people bring to the job 🙂
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