At first glance, the question posed above seems easy to answer. Anyone who damages another person’s belongings must pay for the damage. So: if a contractor damages cables belonging to a network operator (such as Liander) while digging in the ground, the contractor must compensate for that damage. Yet it is not as simple as it seems… This is evidenced by a case that was litigated between a contractor and Liander up to three instances (District Court, Court of Appeal and Supreme Court).
Ground stirring
The Netherlands is full of cables and pipes in the ground. To protect them, a contractor who intends to carry out excavation work (and in jargon, this is called “stirring in the ground”) when carrying out its work is required to file a Klic notification with the Land Registry. Klic stands for Cables and Pipelines Information Center. In this notification, the contractor shall indicate the location in which it wishes to perform excavation work and the contractor shall be notified of the location of any cables and pipes. If the contractor fails to file a Klic report and subsequently damages a cable or pipe during the work, it is plainly liable.
If the contractor has been notified of the location of cables and pipes, the contractor can and must take care not to touch the cables and pipes when excavating. Now what if the contractor cannot find the cables and pipes, despite the statement received? In that case, it is required to act in accordance with the recently updated “Guideline for careful ground excavation from initiative to use phase,” better known as the CROW 500.
CROW 500
This guideline states what the contractor must do if the cable or pipe cannot be found. She then has a choice of three options:
Continue searching, including outside the search area.
Work in accordance with the regulations as they apply in a high-risk area.
Contact the network operator to still find the cables or pipes.
The case study
In the case before the court, the contractor had neatly filed a Klic report. This revealed that a Liander medium voltage cable, parallel to the road, would be present at the site. The contractor attempted to locate Liander’s cable before beginning excavation work. That didn’t work out. Thereafter, the contractor chose to work in accordance with the regulations applicable to a high-risk area (see subsection b above). These include regulations such as the use of detection equipment and the marking of hazardous areas.
Nevertheless, while the work was being carried out, Liander’s medium voltage cable was hit, causing a damage and Liander held the contractor liable. Liander took the position that this was a case of strict liability for the contractor and that the contractor was already liable for that damage as a result of having damaged the medium-voltage cable.
The ruling
However, all three courts ruled that the contractor was not liable for damages. The Supreme Court rejects Liander’s position that there is strict liability here. True, the fact that the contractor damaged the cable leads to the (evidentiary) presumption that the contractor is liable, but the contractor can rebut this presumption by demonstrating that it adhered to the strict wording of the CROW 500. The court also does not share the view that in this case the contractor should have contacted Liander, because the contractor has a choice between the options (see above under a, b and c) provided by the CROW 500 and does not have to follow any particular order in them.
Opinion
In a situation such as this, the contractor must show that it did everything it could to prevent damage. The contractor succeeded in this case by demonstrating that it had worked in accordance with the requirements of the CROW 500, but in practice, of course, there is often a lot of this. If cables and pipes are not found in the location indicated in the Klic report, it is wise to contact the network operator first.
