Three Aboriginal children whose father died from mesothelioma in the NSW Central West have won a battle for compensation after a judge threw out the state government's legal defence and rebuked its handling of the landmark case.
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With their mother no longer a part of their lives, Aaliyah, 16, Daniel, 9, and Thomas, 7, were left to the care of relatives following the death of their father Daniel Ingram six years ago.
The family alleged that negligence by Housing Commission contractors caused Mr Ingram to be exposed to deadly asbestos fibres as a child growing up in a Cowra public housing estate.
The verdict marks the second win for the family against the NSW Land and Housing Corporation - formerly the Housing Commission - after it failed in a bid to evict them from their home in 2015.
Mr Ingram died at the age of 37 in 2013 about a week after he was diagnosed with mesothelioma.
The plaintiffs are the children of the deceased and have suffered great prejudice as a consequence to the defendant's delay and failure to comply with court orders.
- Judge Wendy Strathdee
Judge Wendy Strathdee of the Dust Diseases Tribunal has taken the extraordinary step of striking out the NSW Land and Housing Corporation's defence over its handling of the case.
The tribunal will now weigh up damages to be awarded to the children.
"The plaintiffs are the children of the deceased and have suffered great prejudice as a consequence to the defendant's delay and failure to comply with court orders," Judge Strathdee wrote in the judgment.
The lawsuit was pursued by the family's aunts Eva and Coral Coe, who have guardianship of the children.
The pair - who still live in the home where they were raised alongside Mr Ingram - said the result "shows that the NSW state government can be held accountable".
"This is a huge victory for our late brother and for his kids," they said.
Daniel Ingram was admired around Cowra as one of the few blokes strong enough to swim against the current of the Lachlan River. He was remembered as a "well-liked, happy go lucky fella", talented at sports and devoted to his children.
"You could ask anyone in the main street of Cowra and they knew him," Eva Coe recalled.
The family's lawyer, Sean Behringer of Maurice Blackburn, said the case was the first of its kind and raised broader questions about the safe handling of asbestos by public housing contractors.
"As far as I'm aware this is the first claim for someone who's been exposed to asbestos at such a young age in Housing Commission and where exposure occurred while the department was doing maintenance on the house," he said.
The Department of Family and Community Services (FACS) was unable to comment while the matter was before the courts. A spokeswoman said it had policies in place to manage asbestos.
"FACS takes the health and safety of its tenants, staff and contractors seriously," she said. "FACS' maintenance contract also enforces strict guidelines and robust compliance regimes."
The lawsuit argued the Housing Commission failed in its duty of care to Mr Ingram while constructing homes in Cowra in the late 1970s and early 1980s.
It alleged workers dumped asbestos building materials and fibro offcuts in a public reserve on Mr Ingram's street.
Neighbourhood children - including Mr Ingram - played among the debris, using it as chalk to scrawl on the ground. When Mr Ingram was eight, it was alleged he also played with fibro sheeting discarded in his backyard by a worker replacing a damaged wall in his home.
"The defendant knew, or ought to have known, that the inhalation of asbestos dust and fibre could lead to serious illness and/or death," the statement of claim said.
The only known cause of mesothelioma is the inhalation of asbestos fibres and there is no safe level of exposure, with an average latency period of 20 to 30 years.
"Given Daniel's age, we know that his exposure occurred as a child because of that latency period," Mr Behringer said.
The lawsuit alleged the asbestos waste should have been fenced off and families warned about the dangers.
The verdict follows the family's successful outcome in their eviction case.
The aunts alleged the eviction notice was retaliation after they "complained and complained" when a bathroom sink fell off the wall. The family funded testing that showed the exposed and damaged wall contained asbestos.
"Housing sent their handyman in to get a sample to test too, he came in, got a real big piece off the wall and just walked it out ... no gloves, no mask, nothing," Eva alleged.
The NSW Civil and Administrative Tribunal later found the government agency had "failed to comply with its published policies" and overturned the eviction.
Eva and Coral, in their mid-50s, believe they were also exposed and are anxious about the children's future. "We're really worried about what's going to happen when we pass away. Basically they've got no one but us," Coral said.
Aaliyah is old enough to remember her father before he died. Thomas and Daniel jnr were toddlers at the time. They are equal parts affectionate and mischievous with their aunts, as they tear around the house.
"They understand, we tell them what happened to their Dad and that he didn't want to leave them," Eva said.
Coral has since bought their home from the government, but has mixed feelings about living in the property that "probably killed my brother".
