What should you do before you start digging?

Limelight Articles

Limelight 10/18

What should you do before you start digging?

Authors, Alison Townend , Katrina Fitzgerald

D & V Services Pty Ltd v SA Power Networks [2018] SASCFC 92

Introduction

In the recent decision of D & V Services Pty Ltd v SA Power Networks [2018] SASCFC 92, the Supreme Court of South Australia upheld findings made in the District Court that the appellant, D&V Services Pty, Ltd had breached its duty of care to the respondent, SA Power Networks by not undertaking relevant enquiries to determine whether or not an electrical cable owned by the respondent was in the immediate vicinity of where its workers were digging.

Facts

The appellant was a subcontractor engaged to demolish and remove buildings and debris at Edinburgh, South Australia. Mr Turic, a director of the appellant, was also the project manager. Part of the works to be performed was the removal of buried water pipes.

As part of the appellant’s contract, it was required to obtain a “Dial Before You Dig Plan” (DBYDP) prior to commencing work. This plan would have shown the location of underground services such as power cables, telephone lines or gas lines. Mr Turic did not contact the DBYD service to obtain such a plan, but instead obtained a copy of the DBYDP of the area from another contractor onsite.

This was problematic, as the plan obtained did not include a copy of the disclaimer and header sheet that is routinely sent with a plan obtained from the DBYD service. The disclaimer and header sheet recommend that, if a contractor intends to dig within 5 metres of the location of a high voltage cable, SA Power Networks or another professional service should be engaged to locate the cable accurately.

On 9 March 2011, Mr Dawson, an employee of the appellant, disturbed a buried 11,000 volt cable belonging to the respondent, while excavating a trench. The movement of the cable caused the nearby earth leakage detector to trip causing significant damage to the respondent’s equipment. The cost to repair the cable and equipment was $219,474.

First instance

The appellant, at the first instance hearing before the District Court, accepted that it owed a duty of care to the respondent to exercise reasonable care not to damage the underground cable. It disputed, however, that it had breached that duty of care.

Mr Turic stated in evidence that he did not know that the DBYDP was indicative only and, although the Judge accepted his evidence, he ultimately found that Mr Turic ought to have known that the plan was indicative only. Mr Turic gave evidence about the steps he undertook to establish the accuracy of the plan he had obtained, his conclusion that the cable was 5.4 metres away from the boundary line and that the nearest point of the trench to be dug would be 3.2 metres away from the cable. While the Judge accepted his evidence in relation to the steps that he undertook, he found that Mr Turic was only able to establish the position of objects above the ground and not the position of the cable.

Mr Turic said that he would have checked the position of a cable if the appellant was planning to dig within 3 metres of it. In view of the fact that he thought the cable was over 3 metres away from the boundary line, he did not tell Mr Dawson about the presence of the cable as he was confident it would not be an issue.

The appellant argued that the steps undertaken by Mr Turic discharged the duty to exercise reasonable care not to damage the underground cable.

The Judge found that it did not, and that Mr Turic ought to have known that the plan was indicative only as to the location of the cable. He was not entitled to assume that it was accurate notwithstanding the steps that he took to verify it as a reasonable person in Mr Turic’s position would have taken further precautions to ensure that he knew precisely where the cable was before he directed Mr Dawson to commence excavating. The Judge further found that a reasonable person would have realised that there was a substantial risk that the excavator was working within 3 metres of the cable and have foreseen a significant risk that the cable would be damaged, and that harm might result.

The Court heard evidence that it was possible for the actual location of a cable to be established in advance of any excavation. A contractor could request that the respondent locate the precise position of the cable using a “cable locating” machine. The process of “pot-holing” could also be used. This would ensure that underground cables would not be disturbed in the course of excavation works.

The precautions that should have been undertaken included:

warning Mr Dawson of the possible presence of the cable;
engaging a contractor to locate the cable by using an ultrasound scanner or “pot-holing”;
requesting SA Power Networks to come and locate the cable; and
after locating the cable, manual excavation using a special blunt-nosed shovel to expose the cable.

The Judge further noted that none of the precautions would have placed a heavy burden on the appellant, particularly in proportion to the seriousness of the harm which might have resulted from a disturbance of the cable.

Appeal

On appeal, the Supreme Court upheld the decision of the trial Judge, indicating that, although duties of care may vary in scope, it is a fundamental principle that they are all discharged by the exercise of reasonable care.

Implications

A contractor who is using excavating equipment in an area where there are power cables, telephone or gas lines must ensure that they take reasonable steps to locate those underground services prior to commencing excavating works to avoid a claim in negligence arising for any damage to them.

In this case, reasonable steps would have included retaining a contractor to determine the accurate location of the cable or “pot-holing” prior to commencing excavation works.

Alison Townend Principal, Adelaide Direct: +61 8 8215 7005 atownend@gclegal.com.au

This publication constitutes a summary of the information of the subject matter covered. This information is not intended to be nor should it be relied upon as legal or any other type of professional advice. For further information in relation to this subject matter please contact the author.