ISA HK/China --- Legal framework against tree topping

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Dear All,

Ever since the several occasions of reporting tree topping by this Station in the past, this Station with the help of the CA Family, has been at the same time investigating any regulation or law in HK to be against this detrimental practice by workers & supervising bodies. HK believes in the rule of law, & it is really our laws that govern a lot of our behaviours. Conscience has little match for greed.

The laws of HK, by at large, come originally from the English Legal System, which in turn is based upon Statue Law & Precedent from Case Law evolved over the last thousand years or so. This Station has not found any law of HK directly linked to forbid against tree topping so far. We do not have a Tree Protection Order like in the UK. However, if a tree is topped & fails later, the tree owner can have the right to pursuit a civil negligence law suit against the persons(contractor?) doing it, as well as to the party supervising the work(consultant?).

One significant case in the matter of professional negligence is cited by the case of Bolam-v-Friern Hospital Management Committee, [1957]2.All E.R.18, in which Judge McNair stated, in the case which involved medical negligence (pages 425-426 of 14):

A doctor is not guilty of negligence if he has acted in accordanc ewith a practice accepted as proper by a resonable bosy oif medical men skilled in that particular art. It does not matter that ther is a body of opinion who take a contrary view.

Significantly, he went on to state that:

This statement is, of course, equally applicable to other professions...... & that the most practical suggestion for profession-recommendations of their professional bodies, for example financial reporting standards & other pubished material.

Based on this case precedent, as prudent landscapers, if we are to look for protection of negligence from the case law above, then we should be following the published guidelines of our professional bodies. For ISA Certified Arborists, this will be that of the ISA. For other landscapers in HK, this would probably be the BS 3998: 1989 Recommendation for Tree Work which is a commonly accepted landscaping Standard in HK among the Govt & Consultants.

This Station has studied into the 'Pruning' section of the BS 3998: 1989. In Section 13.1.1 Cuts, it states that :

Pruning cuts should, wherever possible, be made at a fork or at the main stem to avoid stumps, which can die back, & dense regrowth of shoots. Removal of large braches should only be carried out when it is unavoidable, & wounds from such work should be kept as small as possible.

Effectively, this statement is clearly all against ' Topping' & has stated the avoidable steps to prevent Topping & its consequence.

In Section 13.7 of the same Standard on Pollarding, it states:

Note: Topping & lopping are synonymous for pollarding.

Pollarding.....should not be used on trees that have not been previously pollarded, as the large wounds created initiate serious decay in mature & maturing trees.

Note: Very heavy pruning may kill some species..... while others will be stimulated to produce a proliferation of very dense regrowth of shoots from around the wound. Such shoots grow vigorously & have weak attachments to the tree making trees potentially dangerous unless recutting is done frequently.

This is a further statement by the BS 3998 against Topping a tree.

This Station can cite further literature against Topping from other sources if the above is not considered adequate.

So, what is the consequence of all these? If known to the tree owner, the tree owner has the right to take up a civil negligence case to sue the workers & the supervisors for topping his tree!! He can claim that the professionals are not acting in accordance with the practicising guidelines of their profession, & are subject to ' Professional Negligence'. If an arborist is brought in to provide ' expert witness', the chance of winning the case in court, & thus damages, can be highly in favour of the tree owner.

Can the landscape professionals seek shelter by calling tree topping a common practice in HK? This is a case of ' maybe' for the workers since they are under supervision, but would be difficult for the supervisors who are supposed to be trained & qualified for the work. In any case, the ' Vacarious Liability ' issue will fall upon the heads of the supervisors & there has been many case predcedents to support such an issue. The chance for the supervisors to escape claims might be dim.

With this legal framewrok now established, it may be hard for anyone to enjoy topping a tree & call it a normal landscaping practice any more. This will include nursery stocks coming from China which are usually topped to save transport & handling costs. If the supervisors accept topped trees, they can be liable for their failures in the years to come.

Hopefully our trees in HK can be saved from continuing destruction by topping, if our laws now can do something about it.

best regards,

Sammy Au
Station Manager