A public authority conducting prescribed burns pursuant to statutory power owes a duty of care to neighbouring landowners to avoid foreseeable smoke damage, but the scope of the duty and whether breach is established depends on the available precautions and the application of the s 5B calculus under the Civil Liability Act 2002 (WA). The question whether the CLA applies to nuisance claims was raised but not resolved by the majority. Where an employer owes a non-delegable duty of care, statutory immunity of employees from personal liability does not exempt the employer because breach of a non-delegable duty involves primary, not vicarious, liability (per Pullin JA, dissenting).
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