UK Tree Care - http://www.oak-wood.co.uk/uktc/
For arguments sake:
That a tree stump becomes a seat of infection and an inoculum source as a
consequence of a natural act, such as windthrow, would, in my opinion, make
little difference. The reason being that if a tree was rendered hazardous
by partial windthrow, for example, then the owner would still be liable for
the endangered state of the tree, despite the cause of the hazard being a
natural event.
In the UK, a duty of care is conveyed by The Occupiers' Liability Act (1957
& 1984), and a number of court cases. This requires the owner to take
reasonable steps to prevent, or minimise, the risk of personal injury and
damage to property. Failure to carry out this duty of care may render the
owner liable and consequently they could be found negligent. Proof of
negligence requires that it was reasonable for the owner to have foreseen
the potential for damage, and that they could have taken a course of action
to prevent or minimise it. Case law has determined that the owner may not
necessarily have the expertise to determine whether the trees they own
pose a risk of personal injury or damage to property, but that they would
be expected to take reasonable steps to meet their duty of care. ie employ
someone with the necessary expertise. In the Honey Fungus scenario, I know
of no case law that sets a precedent (hence the original posting), but if
the stump is the source of damage to a third party's property, then there
may be scope within this framework to pursue the matter. Which hopefully
would be unnecessary. The crux is whether it was reasonably foreseeable.
At present this is unlikely. However, a report from an arboriculturist
informing the occupier of the damage that their stump is inciting, would
make it reasonably foreseeable, and that a course of action could be
undertaken to minimise the damage - remove the stump.
Re: Scott Cullen's posting - Not sure what may ISP's been up to but only
received your posting this morning. I would be very cautious about
attempting an ID from rhizomorph morphology. In the UK it is certainly
thought too uncertain a practice to identify the species of Armillaria from
rhizomorphs or fruiting bodies, for that matter. Lab tests are
comparatively straight forward and could be used to determine whether the
species and genotype that is responsible for the damage, is compatible with
that colonising the stump (The Forestry Authority and Royal Horticultural
Society at Wisley can provide this service). Roland Fox at Reading
University has been working on a testing kit that is supposed allow ID in
the field - I shall try to find out how this has developed, and let you
know.
Your point about the origin of infection of the stump is a line of
reasoning that would be expected from the other side. It could be that
infection originated from the would be plaintiff's garden, infected the
stump, only to be returned in spades (sic). However, a stump markedly
increases the likelihood of inoculation by spores. And would it make much
of a difference, because it is the creation of the stump that has provided
an environment conducive to elevating the fungus' pathogenicity. Moreover
an attempt to pursue the origin of the infection could easily degenerate
into the realms of evolution, or the Garden of Eden, for any creationists
out there.
Also from the other side. Are the cultural activities of the would be
plaintiff good practice? It could be the case that they have predisposed
their plants to infection by poor practices. Keen gardeners are often very
adept at encouraging and spreading pests and diseases by moving and
transplanting infected plants; importing infected material; growing plants
at the outer most range, or outside, of their tolerance; over zealous
applications of herbicides and insecticides; and inappropriate applications
of fertiliser in the mistaken belief that they're feeding their plants (It
says so on the packet). To name but a few.
Cheers
Acer ventura
-----Original Message-----
From: Dorothy Hartshorne [SMTP:arborinfo@xxxxx.com]
Sent: 14 December 1999 00:33
To: UK Tree Care
Subject: RE: Armillaria
UK Tree Care - http://www.oak-wood.co.uk/uktc/
Just for arguements sake....trees that break off in storms leave stumps
too although this is not as common an occurrance as the chainsaw created
type lets say that the infected stump in question was created by nature
not by man....What then?
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