Hi Bert
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.
I do not have the names, but Pieter De Villiers will probably be able to answer your question. Please send him a PM.
In my capacity as attorney and koi retailer, I was asked the question on numerous occasions. Can I claim damages?
The answer is fairly simple. If the dealer knew or should 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, which is 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 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 has no KHV, then no problem. But by purely selling fish, a dealer does not 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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