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.
NOTE:
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.
