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 KHV: WHO'S TO BLAME?

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Pieter J de Villiers

Pieter J de Villiers

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PostSubject: KHV: WHO'S TO BLAME?   KHV: WHO'S TO BLAME? Icon_minitimeSat Feb 25, 2012 10:38 am

I donít want to start a new argument, but the only one to blame when you get KHV is you!

If you donít quarantine the fish yourself you are an idiot, plain and simple and I do not feel sorry for such a Koi Keeper at all.
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Neli

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PostSubject: Re: KHV: WHO'S TO BLAME?   KHV: WHO'S TO BLAME? Icon_minitimeSat Feb 25, 2012 11:17 am

I always QT my Koi!
But dont U think a dealers should have more responsibility to QT and heat treat the Koi for KHV in order to make sure He is not selling U KHV infected Koi.
This is a basic precaution I would expect from any dealer.
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Neville

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PostSubject: Re: KHV: WHO'S TO BLAME?   KHV: WHO'S TO BLAME? Icon_minitimeSat Feb 25, 2012 11:29 am

Post deleted by admin. Name calling
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Neli

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PostSubject: Re: KHV: WHO'S TO BLAME?   KHV: WHO'S TO BLAME? Icon_minitimeSat Feb 25, 2012 12:14 pm

I dont think We should be looking to blame someone, but A breeder should have proper QT facility, and be very serious about it!
I would not excuse or support a breeder with inadequate QT facility!
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Pieter J de Villiers

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PostSubject: Re: KHV: WHO'S TO BLAME?   KHV: WHO'S TO BLAME? Icon_minitimeTue Feb 28, 2012 7:42 am

Neli,

Let me put it this way...............

Who decide to keep Koi?
Who decide from which Dealers to buy the Koi from?
Who decide to trust the Dealer from where the Koi came from?
Who decide not to quarantine the new Koi?
Who decide the period of the quarantine?
Who is responsible for the correct procedures during quarantine and testing?

YOU!

If you take shortcuts, you should take the blame and not someone other then you.
Koi Keepers serious about Koi should quarantine their fish!
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Neli

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PostSubject: Re: KHV: WHO'S TO BLAME?   KHV: WHO'S TO BLAME? Icon_minitimeTue Feb 28, 2012 7:59 am

Are U telling me that a dealer has no responsibility to QT their fish properly?
Legally it is dealer's responsibility...Look at the judgement in the case in the UK admin posted.
It is the same as telling me:

Who decide to keep TV?
Who decide from which shop to buy the TV from?
Who decide to trust the Dealer from where the TV came from?
Who decide not to take the TV to a workshop the new TV for a check up?
Who decide the period of the check up and the extend of it?
Who is responsible for the correct procedures during check up and testing?
Are U expected to do that when U buy a TV or U expect it to work when U take it home.
I know U will say Koi is a leaving thing and U can not compare it to a TV, but to me it boils to one common denominator: they are both merchandise U pay for, and expect it to be free from factory defects like KHV.
I would still do my QT, but I would never expect to buy a Koi with KHV.
I feel that is totally the dealers responsibility!

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Pieter J de Villiers

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PostSubject: Re: KHV: WHO'S TO BLAME?   KHV: WHO'S TO BLAME? Icon_minitimeTue Feb 28, 2012 3:57 pm

A TV is dead from the start . . .

Would you buy it from a scrap yard?
If you kid pee on it on the way home, will you blame the TV dealer?
Would you place it in the rain during the day and trust it will work that afternoon?
You can change component parts on a TV but not on a Koi!

I can go on like this.........................

People and Koi Keepers should take responsibility for their actions!

Furthermore, regarding the UK case, a South African court would have judged differently.
However if you can prove that the Dealer deliberately selling KHV infected fish, he could be perhaps charged with fraud, but not for selling sick fish!
It all comes back to YOU!

Remember the Dealers donít ask that you buy Koi from them. Itís your choice
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Neli

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PostSubject: Re: KHV: WHO'S TO BLAME?   KHV: WHO'S TO BLAME? Icon_minitimeTue Feb 28, 2012 4:21 pm

Any way, U put it when I ask a dealer are your Koi free of KHV, no dealer will tell me: maybe or perhaps...They will all say my Koi are free of KHV....and that makes him responsible to sale me a KHV free Koi.
Are U telling me that dealers have no responsibility to sale me a KHV free Koi...and I should not hold him responsible in any way?
Are U telling me that it is not dealers responsibility to QT his Koi properly?
I dont buy Koi from scrap yards, neither do I my TV.
Or is it that some dealers have less responsibility than others?
My Koi can not get KHV in the packet on the way home...Yes it can get damaged but We are talking KHV here.
Changing components on a TV is the same as medicating a Koi, but there are some damages that can make a TV a write off, and any new TV U buy from a shop comes with a a return policy, in case of a factory damage
Koi dont, and that is understood, but if a dealer sales U unknowingly KHV infected Koi, He for sure is responsible for that. I dont think any dealer will deliberately sale KHV positive Koi, but a dealer might sale Koi that are not tested and properly QT-ed.
If a dealer gets KHV infected Koi from Japan, they are reimbursed,why should a customer not be reimbursed?
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Pieter J de Villiers

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PostSubject: Re: KHV: WHO'S TO BLAME?   KHV: WHO'S TO BLAME? Icon_minitimeWed Feb 29, 2012 9:20 am

If the Dealer issued a written guarantee that his Koi is KHV free, and you can prove that there was no KHV present in your pond, then you may have a claim.

The Dealers normally have an agreement with the Japanese breeder to replace ďsickĒ Koi.

A few years ago a Dealer in the UK had a case of KHV that was very interesting.
The client purchased some Koi from the Dealer and as the story goes, the new Koi and some of his old Koi started to die. It was KHV.

Immediately the Koi Keeper blames the Dealer, but all the Koi at the Dealer was tested previously, with negative results.
So where did the KHV come from?

They then decided to test all the Koi Keepersí Koi. A Koi nine year a resident of the pond was found KHV positive!

It was found that the Koi in question was not a carrier as no Koi died since it was introduced to the Keepers Pond nine years ago. Apparently the virus was dormant all these years and only become active during the introduction of the latest Koi.

So to blame or not to blame is the question!
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Neli

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PostSubject: Re: KHV: WHO'S TO BLAME?   KHV: WHO'S TO BLAME? Icon_minitimeWed Feb 29, 2012 10:19 am

Thank Pieter!
Your answer makes sense!Lots of sense!
But this days dealers are using the latency card as a trump card!
No one wants to admit and be decent about it...and that is not nice!
Yes KHV can be latent, chronic and acute infection...A koi may or may not shade the virus when latent...
and that complicates issues.
Blame should not be apportioned irresponsibly, but all factors evaluated, and reasonable proof deduced.
It can happen to any one of Us and no one asks for it...
Human error, unintentional can be involved...and We need to understand that.
In fact blame should be applied to irresponsible actions only, and not to human error, for many times it is beyond the control of a dealer!
But if U mess up, U have to be a man enough to face it!
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PostSubject: Re: KHV: WHO'S TO BLAME?   KHV: WHO'S TO BLAME? Icon_minitimeWed Feb 29, 2012 7:46 pm

Pieter, there is a huge difference between normal quarantine expected by the hobbyist and the quarantine expected from dealers.

A dealer must only release koi from quarantine when there are no parasites. It is expected from him to quarantine for a much longer period, and more important, the responsibility to quarantine for KHV is his responsibility.

When you quarantine for KHV, it is imperative that you have to increase your temperature, only to let it fall again, and yo should do it again and again. You have to try your best to force KHV to show if present, and only if it does not show, you may release th fish.

If and when we import in the colder months, it is a very costly exercise, but a must. (Probably why some dealers don't do it) Which hobbyist have the facilities to play around with temperature? Do you have?

Sorry, your statement does not make sense but your are welcome to try and convince me otherwise. I am with Neli on this.

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Neville

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PostSubject: Re: KHV: WHO'S TO BLAME?   KHV: WHO'S TO BLAME? Icon_minitimeWed Feb 29, 2012 9:34 pm

Thanks for his Paul I agree with you 100%.
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Pieter J de Villiers

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PostSubject: Re: KHV: WHO'S TO BLAME?   KHV: WHO'S TO BLAME? Icon_minitimeThu Mar 01, 2012 7:37 am

Paul,
Should I purchase Koi from you, place it in my Pond and KHV is detected say about five days and within 30days all my Koi died, will you be responsible for replacing my collection?

You all miss the point. What I am trying to say, is that the Koi Keeper is responsible for his actions regarding the purchase and treatment of his Koi.

If there is a rumor of a Dealer selling KHV infected Koi, would you buy any Koi from him.?
If you trust the Dealer, and you wave the quarantine period because you which to do so, would you blame the Dealer?

It is so easy to blame someone. Itís the best way out!

Let us agree to disagree.....................


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PostSubject: Re: KHV: WHO'S TO BLAME?   KHV: WHO'S TO BLAME? Icon_minitimeThu Mar 01, 2012 8:09 am

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 if he sells the fish.

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 losses 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 in South Africa.

The biggest problem is, as soon as you introduce the infected fish to your collection, the dealer might argue that one of your fish might 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.

Can you claim the value of the fish purchased and consequential damages? There is a principle in our legal system that you have to limit your possible 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 you can trust and who will provide you with test results and who can provide you with details of their quarantine procedure followd and ALWAYS quarantine your fish again. If you don't, you took the risk and you are also to be blamed.

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Neli

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PostSubject: Re: KHV: WHO'S TO BLAME?   KHV: WHO'S TO BLAME? Icon_minitimeThu Mar 01, 2012 8:51 am

U did not mention this possibility:
What happens if U can prove that the dealer was negligent during his QT procedure?
For example: the fish was sold after 1 week after arrival (no QT)
Can U claim negligence?
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Pieter J de Villiers

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PostSubject: Re: KHV: WHO'S TO BLAME?   KHV: WHO'S TO BLAME? Icon_minitimeThu Mar 01, 2012 9:43 am

Paul,

You used the word ďYOUĒ so prominent that I state my case

Your answer is excellent. AMEM! cheers
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