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 Can I claim damages due to a KHV infection?

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PostSubject: Can I claim damages due to a KHV infection?   Can I claim damages due to a KHV infection? Icon_minitimeFri Jan 18, 2008 12:03 pm

I have been notified of various problems currently in Gauteng with KHV and it is really a pitty that some dealers allow the spread of KHV in our country due to gross negligence or even in some cases, intentional selling of koi, knowing that they have the disease, purely to cover their expenses and to prevent them from going down.

In my capacity as an attorney and koi dealer, I was asked the question on numerous occasions. Can I claim damages?

The answer is fairly simple. If the dealer knew or should reasonably have foreseen that the fish have KHV, he will be guilty of criminal fraud. Apart from this, the purchaser may also claim damages in a civil court based on a delict.

The problem is, you have the onus to prove the following on a balance of probabilities, ("beyond reasonable doubt" in a criminal case) which is often extremely difficult:

1. That the koi purchased from the dealer did in fact had KHV when you purchased it from the dealer.

AND

2. That the dealer knew or reasonably should have known that the fish had KHV.

AND

3. That you sustained financial damages solely as a result of the fish that was purchased.

AND

4. You have to be able to quantify your damages.

If there is any doubt after a trial, you will loose and will have to pay all the legal costs plus the dealers costs, which can be thousands. Therefore it is a big risk, and that is one of the reasons why it does not happen often. I have never heard of a case like this that proceeded until the trial stage.

The biggest problem is, as soon as you introduce the infected fish to your collection, the dealer might argue that one of your fish had KHV and triggered an outbreak, you are then unable to prove that the newly purchased fish had KHV and he will probably get the benefit of the doubt.

Remember that one of your fish might be a carrier, and the fact that they did not die of KHV until the introduction of new fish, does not necessarily mean that they were clear.

Bottomline, if you do not test the newly purchased fish before introduction to your other fish, it is extremely difficult to prove that the dealer is responsible for your damages. On the other hand, if you did test, you would not have introduced the fish to your own collection.

There is also a principle in our legal system that you have to limit your damages. There is an obligation on you to quarantine your fish before introduction to your current collection, and if you don't, you will probably only be able to claim the value of the fish purchased. On the other hand, if you are a novice, and the dealer indicates to you that there is no need for you to quarantine, you might still be able to claim consequential damages.

More difficult, is the onus to prove that the dealer knew or should have known that the fish had KHV.

If he actively guarantees that the fish have no KHV, then no problem. But by purely selling fish, a dealer does not necessarily guarantee that they are KHV free.

If you can proof that the dealer should have known that KHV is present, (or probably present), no problem, but it is not that easy, because you have to proof what went on in his "subjective" mind.

If you can prove that he received positive KHV results prior to the purchase, or if you can prove that prior to your purchase, loads of his fish died, or if you can produce evidence that he admitted the presence of KHV prior to selling the fish, you might have a case.

In conclusion, only buy from reputable dealers who will provide you with test results and ALWAYS quarantine your fish for KHV, especially if fish derives from the far east, Singapore or Israel. Fish from Japan are relatively safe, provided that they were bred by well-known breeders, because they have extremely strict control over KHV, especially in the Niigata region.
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PostSubject: Reply on behalf of Chris Neaves   Can I claim damages due to a KHV infection? Icon_minitimeWed Apr 02, 2008 12:19 pm

Chris Neaves has forwarded the following article on a court case in England to me for placement, thank you for sharing, very interesting. For more information about the case, you can visit the link www.koiherpesvirus.co.uk mentioned in the article.


"Craven v TMI at Leeds Crown Court July 29-Aug.2,2002.
The judge has now handed down his findings following this trial. His full statement will be placed on www.koiherpesvirus.co.uk as soon as practically possible. In the meantime, I am pleased to say that I have been totally vindicated in bringing this action.
I brought this case to establish three major points.
1. That khv existed at the TMI facility at the time I collected my fish, January 5th, 2001. The judge found that was proven.
2. That their aggressive advertising was tantamount to misrepresentation, much of which was untruthful and greatly exaggerated. The judge spends considerable time and outlines various statements made in this propaganda. He concludes that the evidence of Mr. Symonds was at odds with his propaganda and goes on to say that the articles and the advertisements exaggerated considerably the role of TMI in Japan and the extent of its facilities there.
3. That TMI were liable under the Sale of Goods Act for the fish supplied to me. They had to be 'fit for purpose'; they began to die after 4 days. The judge goes into much technical argument here, but concludes that that was the case and, therefore, he awards my claim, plus costs.
The judge's verdict extends to 30 pages plus. At the same time as this is reproduced on www.koiherpesvirus.co.uk an opportunity will be given for comments and questions by anybody who is interested in these events, which have gone on now for almost 2 years."
Ron.

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Pieter J de Villiers

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PostSubject: Re: Can I claim damages due to a KHV infection?   Can I claim damages due to a KHV infection? Icon_minitimeWed Apr 02, 2008 4:43 pm

I received the following from William Kelly ( Happy Koi):

Thanks Pieter - it is important and useful to see what happened there.

From a dealer's perspective though it is difficult not to sympathise with some aspects of the case. Now, 7 years later, when we all know what KHV is and what it does we can all point fingers. But not knowing then must have been tough. And with the next super bug - and there WILL be a next super bug (!!) - what does a dealer do? Kill all his fish on the suspicion? Stop selling his fish on the suspicion? In either case how does he pay his bills then? It's not cheap importing fish and it shouldn't be because then people start taking the short cuts that lead to these situations in the first place!

This is why we pass the risk onto the customer - you buy fish from Happy Koi assuming that they are full of the dreaded lurgi and that the fish are sick and at death's door! The fact of this matter is that TMI were held liable for the entire collection of Koi - against a disease they knew nothing about and could do nothing about. This is just wrong.

What dealer would ever sell a single fish to any other single customer knowing that when the next dreaded super bug hits that the dealer will be held liable for the customer's collection? No way! 74000 pounds killed the entire business (and perhaps they deserved it) but surely if they were selling 34000 pounds worth to a customer they could afford such a payout? The fact that they couldn't means that they didn't have the money - which in itself speaks volumes.

As I have always said it's our business but it is our customer's hobby. The two are very different animals, if you will pardon the pun!

Anyway, that's my knee jerk tuppence worth reaction.

Thanks again and keep it coming. We need more discussion in these matters.

Warm regards,

William
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PostSubject: The Dreaded Lurgi   Can I claim damages due to a KHV infection? Icon_minitimeThu Apr 03, 2008 7:07 am

Hi,

William - a very good posting and a good point of view.

I have always held the opinion that buying koi is like buying a house – you have the opportunity to examine the goods and then you purchase it “foetstoots” – as is. The responsibility is yours.

After writing an article in 1996/1997 about the Coming Plague in the koi world I was lambasted by many experts. The following year, after the reported outbreaks of KHV, was a very silent one ..... not a peep from the critics.

If you think about it the viral infections such as KHV are similar to AIDS. Although KHV kills quickly it can lie dormant in some koi for some time (in the case of AIDS for years) and when conditions are right it emerges to wreck havoc. The dormant period is what makes AIDS so difficult to counter. Other plagues such as Ebola surface rapidly, have a high mortality rate and are therefore easier to identify and isolate. And yes, I am aware of the difference between a viral infection and a bacterial infection.

The reality is that there has never been a cure for any virus infection. Not even a cure for the common cold. I am therefore sceptical about any cures for KHV. A vaccine – perhaps but not a cure.

I agree it’s a major problem for koi dealers. And basic logic tells us that any dealer is selling koi as a business and why should any dealer sell infected koi deliberately – it would ruin his business. Counter balanced against this, there ARE some dealers who sell koi shortly after receiving them. The koi are sold without quarantine and without testing. We should ask ourselves if this is acceptable.

I wonder what killed our koi collections back in the 70’s. It was well known and documented that after introducing new koi to a collection that there was always a risk of some cross infection. Most of the time it did not happen, but when it did you lost most of your collection. You knew you had to quarantine and it was interesting to see the different methods that developed. This forum should discuss the different methods.

Anyway can we be serious – “the dreaded lurgi” - I haven’t seen that phrase for many years. I am still rolling on the floor.

Regards,
Chris
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PostSubject: Re: Can I claim damages due to a KHV infection?   Can I claim damages due to a KHV infection? Icon_minitimeThu Apr 03, 2008 9:24 am

Hi All,

Quote :
Although KHV kills quickly it can lie dormant in some koi for some time (in the case of AIDS for years) and when conditions are right it emerges to wreck havoc. The dormant period is what makes AIDS so difficult to counter.

I am in possession of a DVD clip of an interview with Mike Snaden, of Yume Koi, UK.

In the clip Mike mentioned that when a client’s Koi collection was tested for KHV, the only fish tested positive was a Koi that was bought 7 years before the KHV outbreak.

Buying a house, you could ask the seller to repair the defaults, but with KHV and Koi I think it is more like Russian roulette!
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PostSubject: Re: Can I claim damages due to a KHV infection?   Can I claim damages due to a KHV infection? Icon_minitimeThu Apr 03, 2008 10:52 am

It is very much like Russian roulette as Pieter said, the question is who should take the risk, the dealer or the hobbyist, and at what price.

If we look at the TMI case, the big question was when the risk passed over to the client. The legal position was regulated by the English common law and their Supply of Goods Act.

We do not have legislation regulating the risk in cases like this, and our legal system is based on the Roman Dutch law as opposed to the English laws.

What happened in this court case will not happen in South Africa. I firmly believe that if the same facts were heard in a South African court, the dealer would probably have walked free and I agree with William that the dealer got a raw deal from the judge, and I also have sympathy for them. The dealer could not foresee that he is going to cause consequential damages, and there were no reason to believe that the fish sold had a devastating virus.

Today it might be a different story, because I believe that in view of what happened the last few years, any dealer should quarantine long enough to exclude the possibility of KHV and no dealer should sell imported fish unless they have been tested negative.

The dealer should definitely not have been liable for the whole collection but only for the value of fish sold to the client. Especially back in 2001 at a time when KHV was not a common disease.

His liability for the fish purchased as far as I am concerned lies in the fact that he guaranteed "healthy fish of high value" and a fish with a KHV infection has no value and is definitely not healthy.

When you sell an item in South Africa according to our common law, you guarantee that the item has no latent defects, unless your contract states that the sale is "voetstoots" or you specifically excluded liability for latent defects.

However, even if the sale is "voetstoots" or "as is" and the dealer knew or should have known that the fish possibly have KHV, the dealer would still be liable despite the "as is" clause.

If a koi has KHV, it would be a latent defect.

In view of the current legal position in South Africa, a dealer should either take out insurance, specifically excludes liability for normal damages and/or consequential damages due to KHV or increase their profits to make provision for a possible claim for damages, and of course.... take all possible preventive measures to avoid a claim for damages by ensuring long quarantine periods and proper testing on a regular basis.

From the hobbyist's point of view, only buy from a reputable dealer who are prepared to give you at least a guarantee against KHV for the fish purchased and who are able to give you a KHV-free certificate and one who maintains proper quarantine procedures.(Minimum six weeks with fluctuations of temperature to force any possible outbreak)

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PostSubject: Re: Can I claim damages due to a KHV infection?   Can I claim damages due to a KHV infection? Icon_minitimeThu Apr 16, 2009 9:56 am

Admin wrote:
When you sell an item in South Africa according to our common law, you guarantee that the item has no latent defects, unless your contract states that the sale is "voetstoots" or you specifically excluded liability for latent defects.

However, even if the sale is "voetstoots" or "as is" and the dealer knew or should have known that the fish possibly have KHV, the dealer would still be liable despite the "as is" clause.

Which is all fine and well, however you need to prove beyond any doubt that the dealer did in fact know about the latent defect (KHV), which given the way sales are concluded is pretty damn impossible.


P.S. writing bloody commercial law in May!!!!
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