Excavation damage: a classic real-world example

On the basis of a recent judgment dated October 29, 2021 by the Supreme Court, a classic example from practice is scrutinized: excavator damages a cable, network operator holds excavator liable. The excavator made a KLIC report, requested drawings and dug several trial trenches (in order to determine the actual location of the cable); according to him, no standard of care was violated. The network operator thinks otherwise.

What was going on?

A contractor wants to perform (or have performed) earth moving work. The work is phased (first pile driving, then open excavation). A KLIC notification is made for the pile-driving work, after which the contractor receives documents/drawings from the network operator showing the (local) cables. The information received states that the "drawings are global".

Seven cables are marked on the drawings. The contractor - in order to determine the exact location of the cables - has dug trial trenches. All cables will be located, in accordance with the network operator's drawings.

However, during the pile driving - despite this precaution - a medium-voltage cable belonging to the grid operator was damaged.

Legal framework

A claim for damages from a grid operator is usually based on tort. After all, there is (usually) no contractual relationship between the groundwork contractor and the (local) grid operator. For a successful claim in tort, the grid operator will have to prove that the groundwork contractor violated a standard of care.

The interpretation of the due diligence standard, in this case, is found in the WION (Wet informatie-uitwisseling ondergrondse netten, also known as the "Groundworkers Regulation") and the BION (Besluit informatie-uitwisseling ondergrondse netten and the Richtlijn zorgvuldig graafseproces (CROW publication 250, 2008).

It should be noted that these are the regulations in force at the time of the excavation work. Meanwhile (as of March 31, 2018), the WION and BION have been succeeded by the Information Exchange Aboveground and Underground Networks and Networks Act and the decree of the same name (the WIBON and BIBON). The substantive differences are not significant.

The WION stipulates that the excavator must perform his work 'with due care' (Article 2(2)). To fulfill this duty of care, the WION states that the excavator must at least i) make a KLIC notification ('excavation notification') before commencing the work, ii) research has been carried out into the precise location of the networks and iii) that the information received from the Service (the Land Registry) is also present at the excavation site (see also Article 2 paragraph 3 WIBON, which formulates exactly the same obligations).

An excavator may not always rely on the data/drawings provided by the network operator and/or their accuracy. The answer to the question of whether the grid operator's drawings may be relied upon depends on the circumstances of the case. The time at which the cable was laid and whether work was subsequently carried out at the site are important, among other things. Some research of your own is (almost) always required. However, the network operator must provide drawings/data that are "as accurate as possible.

Process

In the first instance, the claim of the network operator (Liander) was rejected. According to the (subdistrict) court, the contractor had fulfilled its obligations under the WION by establishing, based on the drawings (from the grid operator) received in response to the KLIC notification, that the pile-driving work it had planned was more than two meters away from the theoretical location of the cables.

The grid operator appeals, arguing that the contractor should have surveyed the entire work area (being more than the single pile). In doing so, the contractor used too small a "survey area. According to the network operator, the contractor should have investigated the location of the cables with respect to the entire work, including the open excavation (and therefore not just the driving of a single pile). The court agreed and ruled that to determine the area in which (cables/pipes) must be located, the "excavation profile" is important. That is the area where soil is actually disturbed. That area is therefore larger than the driving of a single pile.

The contractor argues in vain that it dug trial trenches "without obligation. According to the Court, the contractor did locate the cables at some point, but failed to determine the exact location at crucial points in the (cable) route. The contractor was ordered to compensate the network operator for the damage suffered (Amsterdam Court of Appeal 04-02-2020, ECLI:NL:GHAMS:2020:245). The Supreme Court upholds the judgment of the Court of Appeal, referring to section 81 RO (HR 29-10-2021, ECLI:NL:HR:2021:1598).

Conclusion and tips for practice

In excavation damage, a contractor often draws the short straw. So too here. An excavator has a fairly extensive duty of care. The content of this duty is well documented in (among others) the WIBON and the Richtlijn zorgvuldig graafproces (of the CROW). The core of the excavator's obligations is to make a KLIC report, study the relevant data/drawings and locate the relevant cables and pipelines at the site of the project/work (area).

The present judgments show that an excavator cannot limit the scope of its "obligation to investigate" by applying a certain phasing in the work. Such a limitation is contrary to the WIBON or the Directive, as the case may be.

A contractor would do well to exercise prudence when doing groundwork. Do your own research, do not blindly trust the drawings provided by the network manager (especially if they are older), ask questions of the network manager and keep the latter (if possible) involved in the excavation work. In this way, a contractor limits both the chance of excavation damage and liability. Finally, a contractor would do well to make agreements with his client regarding possible damage (to the excavation) - however, that subject is beyond the scope of this article and may be the subject of a subsequent article.