Thermomix, the distributor of the $2000 all-in-one kitchen machine embroiled in an ongoing safety recall, has conceded to half the allegations made against it in a Federal Court case brought by the ACCC.

The court case centres around the TM31, a product distributed by Thermomix from 2006 until it was discontinued in 2014. All 105,000 units were recalled thereafter following a series of burn incidents.

Thermomix has admitted to owing relief payments for two of the four allegations made against it by the ACCC: for the filing of mandatory incident reports years late, and for rejecting claims that the TM31 was part of a recall campaign.

But the company denies it delayed addressing the safety issues posed until a replacement was available, or that it misled customers about their warranty rights.

Thermomix could have to pay millions as each breach of Australian Consumer Law by a business carries a fine of up to $1.1 million. Then there are the $16,650 fines imposed each time a mandatory incident report is filed late.

Companies are bound by law to notify the ACCC within two days when their products are linked to an injury or death. Thermomix missed the deadline to file fourteen mandatory incident reports, including one that was 1201 days late, two that were more than 500 days late and another that was close to 300 days late.

It's possible that the late filing of two of the incident reports may have delayed the recall of the TM31, allowing the company to introduce a replacement before acknowledging a fault with the $2000 outgoing model.

The fault with the TM31 has to do with a $15 sealing ring which helps ensure the lid stays shut, containing the hot liquids inside. It was only after the TM31's eight-year production run ended that Thermomix informed customers the sealing ring would need to be replaced every two years.

In the three months leading to August 2014, the number of 'serious injuries' linked to the TM31 almost doubled to nine, while repair reports acknowledging faults with the lid almost trebled to 1119.

But Thermomix kept selling the models and promoting it as safe until the TM5 could be released. The company's public relations firm at the time, Cannings Purple PR, released a statement that undermined the seriousness of the recall campaign.

"We would like to clarify that the TM31 has never been the subject of a product recall," the statement read. "We want to reassure our 300,000 Australian customers that Thermomix products ... are absolutely safe, providing they are used in line with the manufacturer's instructions."

Thermomix has now conceded this statement was misleading, as per the ACCC's allegations.

It will dispute the remaining allegations brought by the ACCC in Federal Court on 9 April next year.

Thermomix knew its $2000 kitchen appliance had led to customers being burned months before the company initiated a safety recall, the ACCC claims.

And yet it appears the company kept selling the TM31 – all the while promoting it as safe – until it could release and sell a replacement model.

This is on top of breaches of Australian product safety law, where the company failed to file more than a dozen mandatory injury reports in due time.

Problems with the TM31 stemmed from a $15 sealing ring that failed to keep the lid closed and contain hot liquids, leading to reports of people being burned and scalded when using it.

Thermomix was notified by customers who were seriously injured by the TM31 as early as March 2013, court documents filed by the ACCC reveal.

By May 2014, the tally of customers who had been burned or scalded had increased to five. At the same time 387 repair reports had identified problems with the lid, describing it as leaking, opening or being too loose.

In the following three months, the number of 'serious injuries' almost doubled to nine, while repair reports acknowledging faults with the lid almost trebled to 1119.

Thermomix continued to sell the kitchen appliance and, according to the court filing obtained by CHOICE, did not notify the ACCC of injuries sustained by two TM31 users; information that could have influenced the decision to begin a voluntary recall at the time.

The court case alleges Thermomix strong-armed owners to sign non-disclosure agreements and denied known safety issues

Instead the Australian distributor chose to continue selling the TM31 until it was replaced by a newer model in September 2014.

Thermomix Australia initiated voluntary recall of the TM31 in October 2014, a full year-and-a-half after being notified of the first serious injury a customer sustained using the kitchen appliance.

The recall involved a replacement seal being issued to Australian customers, who were told to use the machine at lower speeds until it was available in November.

The Australian distributor revealed – after the TM31 was no longer on sale – that the sealing rings used to keep the lid shut must be replaced every two years.

In March 2016, Thermomix's representatives at the time, Cannings Purple PR, denied the TM31 was part of a recall, issuing statements to the media saying "the TM31 has never been the subject of a product recall".

The ACCC is alleging this claim was false and misleading in its Federal Court case.

The a court case brought by the ACCC alleges Thermomix breached several provisions of consumer law when it strong-armed owners to sign non-disclosure agreements and denied known safety issues.

It also alleges Thermomix failed to report injuries to the consumer watchdog within 48 hours of being notified. The court filing reveals Thermomix failed to uphold its obligation in fourteen instances.

One mandatory injury report was filed four years late.

Two others were filed more than 500 days late, another close to 300 days late and one 100 days late.

CHOICE contacted Thermomix for this article, but the Australian distributor declined to comment during legal proceedings.

The Australian Competition and Consumer Commission (ACCC) is alleging in a Federal Court case that Thermomix violated consumer law when it strong-armed owners into signing non-disclosure agreements, denied known safety issues, and failed to report injuries in due time.

The court action comes after CHOICE presented 87 incidents caused by Thermomix appliances – 18 of which required treatment from a doctor or nurse – to the ACCC in a mass incident report.

Most of the claims in the court case have to do with the Thermomix TM31, a $2000 all-in-one kitchen appliance with a sketchy record.

An estimated 105,000 Thermomix TM31 appliances were recalled in October 2014 – a month after it was replaced by the TM5 – due to a defect that led to people being scalded or burned.

The ACCC is alleging Thermomix made false representations and misled consumers when it denied any knowledge of safety issues, allowing them "to continue to supply the TM31".

Not only did Thermomix know of the safety issues, but the ACCC claims the company failed to file 14 reports detailing "serious" injuries within the mandatory 48-hour timeframe.

"Suppliers must act swiftly to notify their customers as soon as they learn of a potential safety hazard with their products," says Delia Rickard, acting chair of the ACCC.

"This requirement exists to protect the safety of Australian consumers by helping to prevent further injuries," she adds.

Additional allegations centre around Thermomix's dismissal of protected consumer rights in its after sales support.

Owners with faulty Thermomixes were strong-armed into signing contracts in order to get a refund, replacement or repair. These agreements contained non-disclosure clauses and provisions stopping them from "making disparaging comments about Thermomix".

Others were flat out told Thermomix "would not provide refunds or replacements as a remedy at any time"; a claim the ACCC says contravenes Australian Consumer Law.

CHOICE brought Thermomix's conduct to the attention of the ACCC more than 12 months ago. News of the court case was welcomed by Matt Levey, the director of campaigns, before he added more can be done to ensure products are safe.

"The allegations against Thermomix are serious and go to the heart of Australia's product safety protections," he says. "It's further evidence of why the government needs to lift the veil of secrecy from mandatory product safety reporting. Since 2011 more than 10,000 reports have been made but only eight of these have seen the light of day."

The ACCC is seeking declarations, pecuniary penalties, injunctions, corrective publication orders, compliance program orders and costs. Proceedings commence next month in Melbourne.

In 2014 we started tracking what appeared to be one of the more notable household product failures in recent years – the Thermomix TM31.

The unit, which retailed for about $2000 until it was superseded by the Thermomix TM5 (which costs about the same), had become an object of worshipful devotion for many of its owners, who expressed pride at having the king of all kitchen machines in their cupboard.

But the TM31 also became a source of bitter disappointment to those who shelled out the $2000 and ended up getting burnt – some of them literally.

Our investigation into issues which spanned 2014 to 2016 gave rise to an investigation by the ACCC, which resulted in the regulator taking Thermomix Australia to Federal Court in 2017.

Faulty sealing ring

More than a few scalding incidents were attributed to the failure of a faulty part on the TM31 model: a $15 sealing ring for the mixing bowl, which is meant to be replaced every two years – though apparently only a small proportion of Thermomix owners are aware of this critical detail.

In 2014, the issue led to a listing on Australia's national product recalls site, which warned that users could be scalded if the Thermomix is switched to the lid-open position at high speed.

Thermomix adamantly refused to call the incident a recall. The ACCC, on the other hand, confirmed that a voluntary recall was in fact issued and that 'recall' is the correct term. 

CHOICE received reports from consumers that say Thermomix knew about the safety risk well before October 2014, when the recall site notice was posted.

Under mandatory reporting requirements, Thermomix Australia would have had to report any injuries to the ACCC that occurred before the faulty part was listed on the recalls site.

We asked the ACCC if that had happened but were told "we are generally required by law to maintain that information in confidence, unless given permission to disclose it publicly".

In March, we launched a poll to find out how many Thermomix owners knew about the two-year replacement rule. At last count, 3127 people completed our poll, and only 718 (23%) of them knew they were supposed to replace the ring. That means 77% were unaware that the ring needs replacing to prevent a possible scalding incident.

Meanwhile, Thermomix Australia assured CHOICE through their local legal team that replacement sealing rings were sent to all affected TM31 owners as of November 2014. Those rings would be due for replacement in November 2016.

The 'black box' furphy

A number of Thermomix owners were apparently been told to return their machines to the company so one of its components, the 'black box', can be analysed to determine the cause of the lid failure and other malfunctions. But one longtime Thermomix Australia consultant and former branch manager and group leader told us the black box only records weight and time of use. "They [Thermomix Australia] are lying when they say it will tell you what happened with the lid."

Case studies – mass incident report

The discrepancy between expectation and experience among the many disgruntled Thermomix owners we've heard from has been so stark that we decided to escalate the issue.

In late March we launched our 'Thermoburn' campaign with an eye to filing a with the ACCC, the first of its kind as far as we're aware. We asked Thermomix owners to let us know if they'd had issues with or been injured by their machines, and the response was swift.

Between 29 March and 9 May 2016, 87 Thermomix owners filled out our mass incident form and reported a problem with their machine (83 with the TM31 model and four with the TM5). Forty-five reported being injured, and 18 of the injured said they received medical treatment.

Fifty-three people complained to Thermomix about an incident, and ten of the injured who had sought treatment from a doctor or a nurse said they reported the incident to Thermomix Australia, in one case as early as 2013. And many Thermomix owners who had been sent new green sealing rings told us the new part didn't fix the problem.

Here's a brief sample of some of the many comments that have come our way. 

"Bullying tactics"

"I bought a TM31 in 2013 and it was then listed by the company as one of the faulty machines. Although I contacted the company a number of times they refused point-blank to address my concerns or to issue me with a refund. This is despite the fact I was burnt by hot soup when using it with the old seal.

"The company's behaviour has been abhorrent throughout. They have used bullying tactics, ignored consumer law, and answered every question with the same cut-and-paste response.

"$2000 was a very extravagant and expensive outlay for me to make; never have I made such a purchase before. But despite having a new seal I have never used it for cooking again. It is now simply a ridiculously expensive blender. The company is a serious disgrace and their behaviour is a blight on Australian standards."

- Robyn Egerton

'Take us to court'

"On delivery of the TM31 my husband brought to the delivery consultant's attention the loose seal that wouldn't engage in place. Her response was 'it was normal', so we accepted that this was what it was supposed to be like. We also asked about the rumoured new model prior to purchase and were told that there was not going to be a new model released in the near future.

"If we had known we would have waited to purchase the new model five months later. When the recall came in October 2014 we were angry that we had been deceived and straight away I emailed Thermomix refusing a replacement seal and demanding a refund.

"Customer Service at Thermomix was frustrating and I felt intimidated by them and was also told by customer service that to get a refund I had to take them to court. Phone calls from Thermomix customer service ... affected my health and drained my energy."

– Anonymity requested

All the way to the NCA Tribunal

"My TM31 started playing up within a couple of months of buying it. I had issues with the motor stalling when following instructions from their own cook book, the motor stopping, error messages being displayed, the machine flashing 'open' when the lid was on and speed was at maximum. The most concerning issue of all was that the lid unlocked whilst it was operating.

"Not only did I notify Thermomix of this, but I also sent them the videos. They refused to refund and demanded I send in the machine. I told them that I didn't want it repaired, I wanted a full refund as the machine was sold to me as 'German technology' that would last me 20 years. It didn't even last me two months.

"A fight ensued for the next few months and then, realising that I was getting nowhere with Thermomix, I lodged a complaint with NCAT [NSW Civil and Administrative Tribunal]. The hearing was scheduled for a month's time. Two days before the hearing, Thermomix's lawyer contacted me and used scare tactics and bullying to try and get me to sign off on a confidentiality agreement. The method they were using was dirty and disgusting and there was no way I was going to relent to bullies.

"I really hope that some long overdue retribution comes Thermomix's way before anyone else gets seriously hurt."

– Keira (whose refund was ordered by NCAT without any confidentiality agreement). 

Non-disclosure agreements

Aside from the product failure issue itself, Thermomix Australia has taken a belligerent stance toward customers who complain.

Instead of offering prompt refunds to customers who reported being injured or who had other problems with their TM31 machines, the local sales team resorted to hardball tactics.

In what may be an all-time low in customer service for a high-end product, Thermomix attempted to force customers to sign non-disclosure agreements – or gag orders – in exchange for a mere refund, not medical costs or other damages.

Acting for Thermomix, an Australian law firm wrote to customers saying, "the terms of the deed of settlement [refund of the cost of the machine] are strictly confidential and must not be disclosed to any person (but including via social media) without prior written consent".

And customers had to agree "not to disparage or otherwise comment negatively about Thermomix or Vorwerk [the German manufacturer] and not to take any action which it is intended, or would reasonably be expected, to harm the reputation of Thermomix or Vorwerk, or lead to unwanted or unfavourable publicity".

A number of Thermomix owners who contacted CHOICE refused to sign such agreements. 

TM5 surprise release

Thermomix Australia caused a stir amongst consumers when it released the brand new model TM5 in 2014 without any prior warning, surprising even the most fervent "Thermo" fans.

What left a bad taste in consumers' mouths was the fact that many new owners only ordered or took ownership of the outdated model the TM31 as late as the day before the release of the new model, which was the same price as its predecessor.

"I ordered my Thermomix TM31 on 2 August 2014, shortly before the announcement of the new TM5," said Thermomix owner Phil. "At the time, we had specifically asked the consultant if a new model was on the horizon as my wife had asked about becoming a consultant. The consultant's response was, 'no, the TM31 is a tried and tested product with a very low defect rate and looks like it will be around for many years to come'. 

"The locking mechanism on the lid on our machine was a bit dodgy, and we subsequently received a new lid and seal as part of the recall. That did not fix that problem completely, however, just made it stiff and difficult to close. The whole lid issue had made me suspect the surprise launch of the TM5 was due to a known defect with the TM31 rather than a marketing strategy. We are left feeling ripped off, misled and sold a faulty product by Thermomix."

CHOICE gave Thermomix Australia a Shonky award in 2014 for its handling of the TM5 release. Meanwhile, Thermomix informed Phil that, despite the issue with his machine, he did not meet the criteria for a refund.

Thermomix Australia responds

We gave Thermomix Australia an opportunity to respond to what we uncovered during this investigation, particularly whether it was aware of the TM31 issue well before the sealing ring was recalled and whether it now acknowledged that 'recall' was the right term. The company declined to address these points but told us "the safety, well being and support of our customers is and always will be our highest priority".

What to do if you've been burnt

If you've had an incident with your Thermomix machine, public safety lawyer Dimi Ioannou of the law firm Maurice Blackburn offers a few tips on what to do next.

• Locate your receipt, and then contact the person you bought the machine from and ask for a refund under Australian Consumer Law on the grounds that your machine is not of acceptable quality.
• Write a detailed letter about the incident or nature of the malfunction to the manufacturer, Vorwerk Elektowerke.
• If Thermomix Australia asks you to mail your machine in for inspection, request that a Thermomix representative come to you instead.
• If you do mail your machine in, ask to be reimbursed for postage.
• Be advised that you are likely entitled to compensation for any expenses, medical or otherwise, you incur as result of a Thermomix malfunction.