Monday, July 9, 2007

ISA HK/China --- Arboriculture & the Laws

Dear Station Members,

'Arboriculture & the Laws' is a hugh subject which would need many Episodes to even give a general idea. This Station will take its time to go along on this important subject & Episodes will come out from time to time when further research has been concluded.

When asked who would be affected by the subject of 'Arboriculture & the Laws'? The simple answer would be home owners, developers, landscape designers & practicioners, municipalities, utilities, housing management committees, insurance companies, drivers, or anybody who would come into contact with trees. Whenever trees pose as an obtacle, a nuisnace, a hazard or a conservation issue, together with the people involved in it, disputes may arise & may end up in Courts. Tree issues are very common in Western countries, although most would settle outside Court when the other side could not see a way to win. Arborists are frequently involved in tree disputes overseas.

This Station has tried to research into at least 650 law cases in the USA & Canada, & another 90 cases of so in the UK to endeavour a comprehensive discussion for this subject for our Members. Yet the laws in different countries are interpretated differently by their local Courts, especially in the USA where, although Common Laws are practiced, the principles & judgements are vastly deviated from the English Common Laws that we know of in HK. This is partly due to the separate develpment of US Laws since Independence in 1776, as well as a difference in attitudes in acclaiming democracy & human rights from the English system. Such display can be shown in Smith vs. District of Columbia where the Defendant, District of Columbia, was found guilty of negligence when the Plaintiff, Miss Smith, injured herself tripping over a tree root of a street tree growing over the sidewalk. The Jury awarded US$ 75,000 to the Plaintiff (Civil action no. 11504-84). How would our municipalities enjoy reading that?

Honestly speaking, when this Station was going through a lot of these law cases, the experience had been as tasteful as chewing leather shoes, when comparing to reviewing British Standards which was a lot more interesting. The terminologies were sometimes ambiguious & some words, especially those used in the US law cases, were never heard of by the undersigned, although the undersigned had lived & worked in the UK for 11 years & had been trained in UK laws while on the job. There was also difficulties in searching for tree law cases of HK for comparison which seemed to be rather uncommon. This may be due to ignorance of the fact that a lot of tree failures are actually man-made instead of the so-called 'Act of God' by the public. As the general knowledge of tree practices becomes better known in HK, tree related law cases may become more common & available to our local lawyers who do not often contact law suits involving trees.

In Western countries, arborists are frequently involved with tree law cases, mostly by providing 'Expert Witness' to the clients for testifying in Court actions. To be able to act in the capacity of an Expert Witness, the arborist should be able to possess the minimum of such following quality:

1. A basic knowledge in local laws especially Civil Laws.
2. A good skill in communication with expertise in the language.
3. Profound experience in arboricultural knowledge especially in the field that he/she is testifying.
4. Sharp observation & keen analysis.
5. A sense of justice & conscience.

To be able to stand in Court & be cross-examined by lawyers of the other side is absolutely no fun. Writing up 'Expert Witness Report' is brain draining & agonizing. To act as an 'Expert Witness' is certaininly not every arborist's dream for fortune & glory. Any arborist who has done that would say the same.

As an introduction to the topic, maybe we could first look at what kinds of tree related cases would go to Court from overseas experience:

1. Constructional activities disturbing Govt or Private trees
2. Removal or topping of trees by intentioanal or accidental trespass
3. Road signs obscured by trees leading to accidents
4. Poorly designed or maintained trees falling over to pedestrians, vehicles or properties.
5. Hill fires burning down trees belonging to Govt or Private residents by wilful or accidental act
6. Personal injuries sustained by workers or passers-by during tree pruning work
7. Utilities work damaging trees above or below ground
8. Invading roots or branches to neighbours.

The list seems to be endless. In HK, a likely case which has not yet developed into common law suit yet is the contractural dispute between contractors & clients who rely on landscape consultants for payments. Contractors doing tree work can always take the design & specifications to Court & challenge the reasonableness & practicality. The Judges will make the final decision, not the professionals. There are many cases like this in the West. In such cases, both sides would need to call upon 'Expert Witness' to testify. Arborists would likely be involved, like the undersigned has done so in the past & at present although for a different nature.

This Episode 1 is an entry into the subject. This Station will look into some legal definitions & terms in Episode 2 when time has allowed this Station to write on this important & careful subject.

best regards,

Sammy Au
Station Manager


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