NOVE attorney-at-law Kristjan Tamm together with counsel Indrek Niklus successfully represented Agio Ehitus in the Supreme Court in a dispute which focused on the conditions under which horizontal drilling must be considered as a source of greater danger.
On 26th of October 2021 the Supreme Court made a decision in the civil matter no. 2-19-7379 and satisfied the appeal in cassation of NOVE’s client Agio Ehitus, concerning the question of whether or not horizontal underground drilling as an activity is a source of greater risk. According to the circumstances of the case, the underground drilling resulted in damage to the utility network, as the underground pipelines were not located at the location where they should have been according to the information received from the project and the owner of the utility network. It depends on the above whether the driller is liable for the damage caused by the drilling (for example, damage to an underground pipeline belonging to a third party) independently of the driller’s fault.
The Supreme Court agreed with the statement of Agio Ehitus that underground drilling as an activity is generally not a source of greater danger (except for situations where, for example, control over the location of a drill bit is lost) and the driller shall assume responsibility for damage to the utility network only if the driller was at fault for the damage, i.e if the driller did not take reasonable steps to determine the exact location of the underground pipelines in the vicinity of which the drilling took place.
If underground drilling as an activity had been a source of greater danger, the driller would be responsible for damaging the utility network, regardless of the guilt and diligence of the driller. It would significantly increase the risks for the drilling companies and the costs of risk mitigation. As the policy conditions also depend on the degree of risk of the construction work, the court decision made in this case will also affect the insurance market in terms of the conditions under which insurance companies agree to insure underground drilling.
The judgment of the Supreme Court can be examined in further detail here: https://www.riigikohus.ee/et/lahendid?asjaNr=2-19-7379/61