Tuesday, April 13, 2010

ISA HK/China --- Arboriculture and the Laws (Episode 2)

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Dear Station Members,

It has been 4 years since ISA HK/China would dare to touch on this complicated topic again --- Arboriculture & the Laws.

In the past 4 years, ISA HK/China mainly through the work of the Station Manager (SM) has seen Arborists getting involved with legal issues in Tree Dispute more than any other greenery profession in our territory. However, we are infant if compared to places like North America, where Tree Dispute is almost a daily issue in Arbitration & Court somewhere. Some lawyers have even turned into Arborists (or vice versa?) to take a share in this big apple pie. Well known experts like Dr. D Yniguez who possesses a Doctorate Degree in Law, & Mr. L Bloch who wrote "Tree Law Cases in the USA" for ISA, are active Arboricultural Consultants. The SM had the honour to be coached by Dr. Yniguez during his North American training in Feb 2010, & has learned how sharp the teeth an Attorney can be in Tree Dispute.

The Arborist Profession in North America frequently goes to Court. It may be for the Negligence of somebody in tree design, installation, maintenance, inspection, risk assessment or construction protection, or an Arborist is employed to advocate or testify in court for Tree Failure. Over there, anybody can sue somebody for practically anything. A pad on the shoulder can be interpreted as an Assault, & the Court may grant Damages in the value of USD 1 for no significant harm done. However, for a failed tree to hit a power line to induce blackout for days, the claim may be in the millions. It will be even worst if injury or fatality happens, especially to youngsters. Flower & fruit dropping of a Boundary Tree onto neighbour's property may invite Nuisance. Roots uplifting pavement to trip somebody may lead to civil claim. Trees growing too big to block a view may bring mandatory pruning to be contested by the activists. The list just goes on & on.

A frequent position for an Arborist to appear in Court is to act as an Expert Witness. As an Expert Witness, the Arborist must possess extensive knowledge & experience in Arboricultural Practices, Technical Writing Skills, Oratory & Litigation Competence. Not every Arborist would like to work as an Expert Witness, because he will be cross-examined by the opposing Attorney who is specially trained to churn facts into his favour. "Nail the Liar" is the legal training with CEU for Attorneys in North America, & it is a popular program. The SM has noticed that most of the Arborists serving as Expert Witness in North America are 50+ in age & have at least 20 years in the greenery industry. Some of the better ones do not even come from a greenery background like the "Blue Blood" concept commonly practiced in our British system in HK. Yet who can beat them in Court ?

What would usually determine an Arborist win or lose in Court is his Expert Witness Report. In North America, it is regarded as a form of Technical Writing & is best written in Plain English. This means skip the jargons & say it clear & simple to the laymen, because most Court Judges are unfamiliar with our technical terms. This is the reason why Court Arborists are devoting themselves to learn this difficult technique to present themselves with brevity, clarity & fluidity. It is easy to pad sentences with repetition & irrelevance in the name of "professional", but not so the other way round. It is much harder to write concisely, precisely & clearly with a scientific language, as opposed to verbosity, vagueness & clutter. This practice appears to be new in our territory, at least in the greenery industry.

Tree Dispute going to Court is uncommon in HK, because most people simply do not realize that it can be so. Most would think that Tree Failure is an Act of God. "Act of God" in ISA is defined as " An Act occasioned exclusively by violence of nature without the interference of any human agency" (Arboriculture & the Law, ISA, 1992).

In North America, most urban trees would receive care in one form or another by the municipality or the tree owner. If failed, it would not be accepted as an Act of God because care has been given, or should be given. It is generally accepted that only rural trees without a Duty of Care in them to fail in storm would be allowed into this category. Anyway, the Court Judge will make the decision, not anybody.

In the several Tree Dispute that the SM have handled so far in HK, only one involved Tree Failure. The rest belonged to nuisance, land ownership dispute with trees growing on it, illegal tree felling & improper tree design. As public awareness in Tree Planting is increasing in HK, more Court cases may follow from incompetence in tree design, installation, maintenance, inspection, assessment & protection, to a range of many others. Our local lawyers have already seen this as a source of additional income other than the popular Accident Claims. Cases are likely to spring up in future. A few lawyers have already contacted the SM for collaboration. Then why not?

ISA HK/China will conduct seminars in Legal Consultation in Arboriculture later on to benefit our Station Members. On the other hand, we would advise our local Arborists to first master basic skills in legal knowledge & communication to that of an IPA (http://isahkchina.blogspot.com/2008/08/isa-hkchina-independent-practicing.html), before coming to the sessions. The IPA credential has laid out the minimum basics for an Arborist to practice in the legal arena, & the SM requires himself to be miles ahead of these to work as an Expert Witness. Without basic knowledge, the Arborist in Court will find himself a fool standing in front of everybody, & is likely to be carved into pieces by the opposite party. Credentials alone would not help.

There will be a Court session on a Tree Failure case in a HK Court on April 27 & 28, 2010 to be attended by the SM. He is representing a demanding client who vowed never to lose with positive vengeance towards the other side. The session will be the Examination-in chief, & the SM will be firing questions to the opposite Arborist during the Cross Examination. He will follow a standard protocol learned from North America to lead the opposite side to a losing end. It will be exciting to watch this educational session, to see the rare skills of an IPA in Court.

On the other hand, Courts in HK are too small to house too many, & the case is not the only one in session on Apr 27. In view of this, no more than 10 places can be allowed for our Station Members to join on a first come first served basis. ISA HK/China has to apologize for this indeed.

Would all those who wish to attend this Court session please send in your confirmation immediately to the SM by e-mail ? Those who do not hear a reply by 5 pm of Wednesday Apr 14, 2010, can assume that all places are already booked. Please do not call or e-mail in afterwards for intimacy. No favouritism is practiced in ISA HK/China.

Looking forward to have the Laws to advance proper Arboriculture in our territory, one tree & one Arborist at a time .

best regards,

Sammy Au
Station Manager

"If a tree is not designed, installed, maintained & inspected properly, it is likely to become a liability rather than an asset."

"Trees are good for the community. Trees need care like human beings. Arborists are the Tree Care Professionals."



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