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Claim ‘insufficiently substantiated’

Pepper grower can wave 500 thousand euro compensation from chrysanthemum neighbour goodbye

Facing a one hundred percent loss, half a year after the start of the pepper cultivation, due to the tomato spotted wilt virus (TSWV). This happened to a pepper grower in the Dutch province of Gelderland, who suffered 500 thousand euros worth of damages, missing a harvest due to the virus. The grower is looking to get back this amount in compensations from their neighbor, a bouvardia and chrysanthemum grower because the thrips are thought to originate from the open plant waste deposit, a hotbed for these types of insects, on their terrain.

The Judge at the Court of law in Gelderland was presented with this claim for 500 thousand euros on the 8th of April, the decision of which was published recently.

Alas Orius
By the end of November 2014, a new cultivation was started by the pepper grower. In March 2015, the neighbor's open plant waste deposit was emptied by an external party as usual. The waste deposit of the bouvardia and chrysanthemum grower is located just ‘several dozen meters’ from one of the two greenhouses owned by the pepper grower.  

In that greenhouse, 2.6 hectares, a lot of plants took a turn for the worst in April due to TSWV. A cultivation advisor's report shows that the Orius, which was used, was not able to develop, so spraying to reduce the virus's pressure was inevitable.

However, as it turned out in the 31st week of 2015, this was to no avail. One hundred percent of the plants in the back greenhouse were tainted. The greenhouse at the front remained untouched, but the pepper grower nevertheless accumulated over 500 thousand euros in damages. €52,713.00 to be exact.

Miscalculation
The pepper grower reached this amount by taking the cultivation per square meter in the front greenhouse (32.5 kilograms of pepper per square meter) multiplied by the surface of the back greenhouse, 26,750 square meters. 869,375 kilograms should have been the amount harvested, but this eventually turned out to be only 276,000 kilograms.

With an average price of €1.10 per kilogram and the difference between the expected harvest and the eventual harvest, the grower ended up with a sum of almost 700 thousand euros. After taking into account the money saved on labor, energy, fertilizer, water, and marketing costs due to the reduction in harvest, a net amount in damages of over 500,000 euros remains.

Careless neighbor?
The court noted the miscalculation made by the grower, 869,375 kg – 276,000 kg does not make 620,375 kg but 593,375. With these same assumptions, the Judge still ended up with an amount of €495,012.78 in net damages.

However, as far as the Judge is concerned, the grower will not be receiving this amount. The grower is not able to prove beyond a reasonable doubt that their neighbor has been handling the cultivation waste carelessly.

'Relatively free of thrips' and innovativeness
In response to the thrips complaints made by the pepper grower, the bouvardia and chrysanthemum grower noted that the plant waste in the deposit was the cause of root rot led on by Pythium. The grower faced a significant loss, but this was due to the innovative way in which they cultivate bouvardia. The grower was also able to show reports of a cultivation advisor, which showed that the grower had been ‘relatively free of thrips’ compared to other chrysanthemum growers.

No definitive regulations
Given that there are no definitive regulations regarding how to handle the cultivation waste in deposits to fall back on, the Judge calls the pepper growers claim aimed at their neighboring bouvardia and chrysanthemum grower 'insufficiently substantiated’. The Judge, therefore, deemed further investigation into causality unnecessary due to the amount of debt and damages.  

The litigation costs on the side of the defending neighboring grower, about ten thousand euros, need to be paid by the pepper grower.

Read the entire ruling here.


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