Speaking to Lawyers Weekly, Roger Singh, dust disease national special counsel at Shine Lawyers, said that this issue is far from over.

“We have seen irreparable damage to health and in many instances, seen lives cut short in light of asbestos related cancers such as mesothelioma. The latency period from first exposure to onset of disease can take between 20 to 60 years to eventuate and to this end we are continuing to see the asbestos legacy wreak havoc to the present day with Australia recognised as one of the highest measured incidence rates of mesothelioma in the world,” he said.  

“Each year in Australia between 700 and 800 people are diagnosed with this rare and aggressive cancer. In the 2018–2019 financial year, the estimated health expenditure for mesothelioma cases was $27.4 million.”

In a particular case, one lawyer has called for an asbestos audit of an NSW government property, after Housing NSW attempted to terminate a family’s lease.

After finding mould in the bathroom and kitchen and imploring the housing authority to fix it for over a decade — before finally employing a tradesman to fix the damage out-of-pocket — mother of four Olga Wolfson has said she will fight Housing NSW, which told her in September 2020 that there was asbestos in the building and that she and her family needed to move out.

“We wrote and begged them to fix the bathroom and kitchen, starting in 2012 — but they never did anything. There were broken tiles falling off the walls, and mould and damp coming through. My two children and I were suffering from asthma and bronchitis,” she said.

“My 21-year-old son suffered lacerations from a broken tile. He has severe autism and an intellectual disability. We had no shower. For more than six years we begged and all they ever said, when they at last responded was, ‘We will look into it’ and then did nothing.” 

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Ms Wolfson said that she obtained an occupational therapist’s report in 2017 that she forwarded to Housing NSW, which referred to the need for the premises to be modified for her son’s special needs and to render the property liveable — but was met with silence from Housing NSW.  

Ms Wolfson’s solicitor, Stewart Levitt of Levitt Robinson, has called for an investigation of Housing NSW to determine whether sites are contaminated by asbestos and safe for human habitation or even for unprotected inspection. 

“There seems to be a systemic problem in Australia that poor people are treated as inferior and as having few, if any right, to the quiet enjoyment of subsidised rentals,” he said.

“The fact that someone is paying a lower rent to Housing NSW or to a similar social housing provider in WA, should not mean that they and their kids are exposed to extreme danger of accident or disease through neglect.”

Housing authorities generally have a duty of care to ensure that any property is in a good state of repair and free from the risk of asbestos exposure, explained Mr Singh.

“Asbestos does not cause harm when insitu within the fabric of a building. It is only when the asbestos is disturbed, where asbestos dust and particles are airborne that the risk of exposure and disease is realised. It follows that if the housing authority knows or ought to know that the property is in disrepair or dilapidated so as to pose risk of the liberation of asbestos dust then it must take reasonable steps to eradicate the risk to safeguard the tenant from the risk of harm,” he said.

“If it does not do so then in such circumstances should the inhabitant suffer exposure and develop disease then the housing authority could well be liable to compensate the injured person in the event a compensation claim is brought. The same principle and reasoning would apply to private landlords.”

According to Mr Singh, a tenant may be entitled to seek compensation if they develop an asbestos-related disease — such as pleural disease, asbestosis or asbestos-related cancer such as mesothelioma.

“However, in order to bring a claim for compensation it is necessary to have a viable defendant against whom the claim might be brought, namely the entity responsible for the exposure due to its breach of duty of care and negligence. It must be proven that it was reasonably foreseeable that the subject of asbestos exposure would likely cause the asbestos disease sustained,” he said.

“The legal jurisdictions throughout Australia may vary with respect to the mechanics of bringing a compensation claim. A worker (employed person) who ultimately develops an asbestos related disease may have significant compensatory entitlements under the state-based workers compensation scheme as well the right to bring a court-based claim. For those who may have encountered exposure outside a workplace environment; for example, a spouse who developed disease as a consequence of shaking out and laundering their loved one’s dust-ridden work clothes, home renovators or exposure encountered at a rental property would be entitled to bring a court-based claim.”

At the end of September 2020, Ms Wolfson was told that there was asbestos in the building and that her family needed to move out. She was initially told that it would be for two weeks, which turned into 19 months. Ms Wolfson’s 68-year-old mother, who had lived at the property between 2004 and 2012, was also diagnosed with Non-Hodgkin’s Lymphoma in 2015. 

Following Ms Wolfson’s move back into the property, in April 2022 she gained access to a further report by asbestos consultants, EnviroX. According to the EnviroX report, 58 Bourke Street, Woolloomooloo, was still a contaminated site. The report advised that “affected areas should be sealed or encapsulated as soon as possible but would need to be removed prior to demolition or refurbishment”. 

In June 2022, Ms Wolfson paid Absolute Environmental Services for removing asbestos panels from the toilet, laundry and external wall-cladding and to dispose of all waste to a licensed facility. 

“We had to spend almost $10,000.00 of our own money because Housing NSW would not commit to providing us with a safe environment. It has continued to keep vital information from us,” she said.

“Housing NSW did not want to fix the problem or even tell me about it. The townhouse at 58 Bourke Street, Woolloomooloo was built more than 50 years ago.” 

Sadly, Mr Singh said that the risk of asbestos exposure remains a concern moving forward — with what he’s called a “third wave” of asbestos-related illnesses and risks.

“The first wave was due to mining and milling and manufacturing of asbestos products, the second was due to working with and using the product, the third wave is associated with occupational and non-occupational exposure to asbestos as a consequence of repair, renovation and demolition.

“The tragic Australian asbestos legacy has not yet run its course and a predicted ‘third wave’ is upon us. If home renovators encounter exposure and suffer disease, then a course for compensation might be available but identifying a defendant to sue in such circumstances could be problematic. This is because it may not be possible to readily identify the manufacturer of the asbestos material demolished and disposed of during the renovation project, however those who might be employed on a demolition or renovation project may have recourse for compensation via workers compensation schemes and court-based action if it can be established that the employer knew or ought to have known of the occupational asbestos hazard but failed to take steps to warn and safeguard the worker,” he added.

“Additionally, if a housing authority knew or ought to have known about a prevailing asbestos risk at the tenanted premises, but failed to warn or remove the risk, then should a tenant develop an asbestos related disease they may have grounds to seek compensation against the authority. The same principle will apply insofar as a private landlord is concerned.”