While Caltex defended its actions in the wake of the incident Fire and Rescue NSW was not made aware of the spill or “spray” until hours later, on September 25.

FRNSW said the amount was “impossible” to quantify because of the weather conditions and how it had spread.

Caltex said it was seven litres that had affected the property –  in a “spray” – but offered no explanation to the delayed response.

Three generations of the Kirby family had gathered in their house on Brown Street, next to the Richardson Road Caltex, when the incident occurred.

"All at the same time, I said 'can anyone smell diesel?' and my daughter-in-law said 'can anyone smell turps?' and my grandchildren said 'can anyone smell something that stinks?'," Margaret Kirby recalled.

Ms Kirby and her husband, Craig, ventured outside about 1.50pm and found a leaking tap from the service station had put diesel across their yard, the roof of their patio and onto their car.

“It was quite wet then, so I don’t know how long it had been going on,” Ms Kirby said.  

The family shut themselves in the house with the fans on. But within about 10 minutes of being exposed to the fumes, Mr Kirby was struggling to breathe.

“I was making him a sandwich and when the ambulance arrived, he still had half of the sandwich left,” Ms Kirby said.

Mr Kirby, who has a history of heart and respiratory problems, was admitted to Maitland Hospital for two days. Doctors suggested he may have a case of pneumonia or the flu, but swabs came back negative, the couple said.

He was diagnosed with a respiratory tract infection but the Kirbys are convinced his illness was linked to his exposure to the toxic fumes.

“You don’t develop a chest infection in ten minutes,” Ms Kirby said.

A World Health Organisation report said breathing diesel into the lungs could cause pneumonitis, with the symptoms including choking, coughing, wheezing, breathlessness and fever.

Maitland Hospital’s Director of Medical Servies, Professor Pooshan Navathe, said the hospital took note of his exposure to the fumes but could not prove a link to the incident. 

“Identifying a causal link between breathing difficulties and exposures requires specialised testing, which is not routinely done in an acute setting, as in this case,” he said. 

According to the NSW EPA, a business must inform emergency services immediately “in the event of an incident that causes or threatens harm to the environment.”

FRNSW were not notified until 6.45pm on the night of the spray. The Kirkbys had “rung Caltex straight away”.

A Caltex spokesperson said protocols were put into action “immediately” and included notifying emergency services, Safe Work NSW, the EPA and Port Stephens Council. However, she did not respond when pressed on exactly what time FRNSW was contacted.

When the fire brigade arrived, the family was evacuated. HAZMAT and the Lower Hunter duty commander were also called to the scene.

“Firefighters from Raymond Terrace Fire Station established an exclusion zone on the property and liaised with the owner,” a FRNSW spokesperson said.

“FRNSW advised the occupants to seek alternative accommodation for the evening as a precaution, until the spill could be further assessed and remediated.”

That remediation work included removing half of the turf in the Kirbys’ yard. Their plants, roses and six vegetable gardens were also dug up, bagged and thrown away.

That was devastating to Mr Kirby, who has found solace in his garden after his heart problems left him unable to work.

“It’s basically all I do, the grandkids come over and we work in the garden,” he said. Before its destruction, the garden boasted potatoes, capsicum, lettuce, squash, brussel sprouts, radishes, cucumbers and corn. 

“They were put in so at Christmas we’d have veggies and wouldn’t have to worry about going to the supermarket,” Mr Kirby said.

Another casualty of the spray was a strawberry patch belonging to the Kirbys’ three-year-old granddaughter, Felicity.

“She’s had the strawberry patch since she was 17 months old. I tried to explain it to her and it broke my heart to look at her face,” Ms Kirkby said.

Caltex paid for the remediation works but said it was “inappropriate” to comment when asked if they accepted liability for medical costs.

“Caltex are in contact with our neighbours at the Brown Street site and a team have been engaged to investigate what happened,” she said. 

“Remediation is a part of our response to an incident such as this and is underway, with soil testing and cleaning. When we have a better understanding of what occurred and how it can be prevented in the future we will ensure that we use that learning across our network.”

A council spokeswoman said it had not closed the case.

“We're continuing to work with Caltex and the relevant authorities to have the matter resolved, or take any compliance action, if required,” she said.