Kmart has been ordered to pay a Christchurch couple just over $15,000 after children’s play sand bought for their twins was found to contain tremolite asbestos.

Elle Chrisp and David Dingwall spent nine months seeking compensation from Kmart NZ Holdings after arranging their own testing of the sand.

The Disputes Tribunal awarded the couple costs associated with asbestos testing, urgently relocating their family, replacing household items, remediating their property and the loss of enjoyment of their home.

The Tribunal found the sand was unsafe, unfit for purpose and not of acceptable quality under the Consumer Guarantees Act.

Disputes Tribunal referee Cynthia Hawes said the product should never have been offered for sale.

“I do not think that any reasonable parent, acquainted with the fact that the moulding sand contained asbestos, would purchase it,” Hawes said.

Kmart had maintained the sand presented a low risk and challenged some of the family’s actions and expenses as unnecessary or excessive.

Hawes rejected those arguments, finding the steps taken by the family were reasonable and justified. In relation to one expense, she found they “had no choice”.

Consumer New Zealand head of research and advocacy Gemma Rasmussen said the case demonstrated how difficult it could be for families to obtain compensation following a product safety failure.

“This case shows just how difficult it can be to get redress when a product safety failure occurs,” Rasmussen said.

“Elle and David spent nine months gathering evidence, forking out thousands of dollars and taking Kmart to the Disputes Tribunal.”

Consumer New Zealand said Kmart’s low risk assessment relied on a supplier commissioned report concerning a different product.

It said information from that assessment was subsequently included in a recall notice published by the Ministry of Business, Innovation and Employment.

Chrisp and Dingwall sought to resolve the dispute directly with Kmart but did not want to accept a confidential settlement.

“We just wanted it on the record,” Chrisp said.

She said the ruling was particularly important because the couple had repeatedly been made to feel they were overreacting.

“We took on Kmart at the Tribunal because they should have accountability for selling an unsafe product,” Chrisp said.

She hoped the decision encouraged other families whose compensation claims had been dismissed to continue seeking answers.

Consumer New Zealand understood it was the first Disputes Tribunal ruling in New Zealand involving the recalled children’s sand.

Tribunal decisions do not establish a legal precedent, but Consumer New Zealand said the outcome showed other affected families could potentially recover reasonable costs under the Consumer Guarantees Act.

Thousands of New Zealand families purchased sand products covered by recalls, with many receiving only a refund for the product.

Product Safety New Zealand advises that any consumer product containing asbestos should be recalled. It said consumers could also be entitled to compensation for related losses, including professional cleaning costs.