Sunday, September 27, 2015
Issues Related to Fallen Trees in Malaysia
Construction development in Malaysia nowadays include the development of greenery areas and trees. Putrajaya, one of the biggest planned city in Malaysia was planned as a garden city. Various trees were planted or let untouched in its development. According to Roberts, Sally A. it is almost beyond comprehension that something which appears as simple, lovely and majestic as the everyday common tree could involve so many complex legal issues. Tree law encompasses a number of general categories: 1. Boundary & Border Line Trees 2. Trespassing Cases 3. Cases Involving Roots 4. Real Estate Cases 5. View Cases 6. Municipality and Public Highway Cases 7. Utility Company Cases 8. Easements and Rights of Way 9. Negligence Cases 10. Safety-Related Cases
Tree law cases can be fascinating, and many involve several subject areas. For example, some cases concerning roots also involve the same issues as those of border, boundary line and trespassing cases. Trespass cases can arise when a party takes the law into their own hands by performing trimming or actual removal operations. According to O'Brien, Michael and Hanemann, Stephen a fallen tree owner can be held liable under tort law if it can be proven that he neglect proper maintenance of the tree. according to the state of Louisiana Civil Code article 2317.1: The owner or custodian of the thing is answerable for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew or, in the exercise of reasonable care, should have known of the ruin, vice or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that he failed to exercise such reasonable care. Thus, to establish liability for damage caused by a defective thing (i.e —a fallen tree), the property owner must demonstrate that the tree owner should have known, in the exercise of reasonable care, of the defective tree that caused the damage, that the damage could have been prevented by the exercise of reasonable care, and that the tree owner failed to exercise such reasonable care. Caples v. USSA Ins. Co., 806 So.2d 148, 150.
Apart from fallen trees, damages may also be inflicted by the root of the trees. Tree roots are often blamed when buildings sustain damage. The legal basis of tree root claims is usually nuisance. This is not nuisance in the usual sense, but a specific branch of the law of tort, another branch of which is negligence. A tree root claim founded on negligence would face the difficulty that damage to buildings is generally held to be economic loss which is not usually recoverable in a negligence action. In contrast, the tort of nuisance specifically relates to the interference with occupation and enjoyment of land; indeed the claimant has to have an interest in the affected land in order to bring an action. Many property-related claims are brought in nuisance, for example the claim in Hunter v Canary Wharf concerning interference with TV reception. As well as proving their interest in the land, a tree root claimant has to show encroachment by the defendant's tree roots, and prove damage caused to their property by the roots.
The rights and responsibilities over trees not only imposed onto individuals. Lindsey, Sue illustrated this by referring to the American case of Guinan v. Ottawa (City), where the decision of Justice J. MacKinnon of the Ontario Superior Court, dated February 26, 2010, confirms that the common law nuisance principles that apply to private landowners, also apply to municipalities. It is therefore possible for a municipality to be found liable for private nuisance. According to Roberts, Sally A. there are various reports and issues related to trees. To certain extend, issues related to trees may resulted to injuries to body and property. The PetalingJaya City Council (MBPJ), for instance, has awarded RM148,245 to claimants from 2009 to 2011, for various cases in Petaling Jaya, involving damage to vehicles going into potholes, trees falling on private property in a storm and children hurt at playgrounds. Citing the above report by MBPJ, a mere RM148,245 was awarded to claimants for a period of 3 years, for various incidents, which include fallen trees. Is there any reason why compensation awarded for damages caused by fallen trees are low in numbers. Is it possible that the Malaysian public are not aware of their rights to claim compensation for fallen trees? Or the low compensation awarded for damages caused by fallen trees is the result of limitation and restriction of the existing laws available. Referring to the above, a research on the understanding of the Malaysian public on issues related to trees and responsibilities for damages caused by fallen trees is to be conducted to address the issue.Accordingly, this research is meant to look at legal issues related to trees in Malaysia, rights and responsibilities attached to it as well as improvement that can be made. The extent of compensation and insurance coverage, if any, need to be understood in order to ascertain whether such protection available is sufficient to cover for any damages. As such, it is important to identify and examine the Malaysian legal position on trees, together with relevant rights and responsibilities that ensues. Further, the understanding of the public on the rights and responsibilities over damages caused by fallen trees will be explored.
The above statements are abstract of an article by Zul Zakiyuddin Ahmad Rashid, Faizal Baharum, Radzi Ismail, Abdul Aziz Hussin, Hanizun Hanafi, An Overview on Issues Related to Fallen Trees in Malaysia, Journal of Advances in Environmental Biology, 9(4) March 2015, pp. 99-101.