Scardoni and Davis (Civil Dispute)
[2013] ACAT 35
•17 May 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SCARDONI & DAVIS (Civil Dispute) [2013] ACAT 35
XD 100 of 2013
Catchwords: CIVIL DISPUTE – damages application - terms and conditions of sale of puppy – puppy diagnosed with parvovirus after delivery – fundamental breach of contract - dispute over age of puppy - time when parvovirus was contracted and incubation period - treatment of puppy – foreseeability of damages -claim for veterinary expenses and refund of purchase monies – whether refund of purchase price ended contractual relationship – counterclaim by seller
List of Legislation: ACT Civil and Administrative Tribunal Act 2008, ss.6, 7, 8, 16, 17 and 62
List of Cases: Cripps v G & M Dawson Pty Ltd [2006] ANZ ConvR 350
;
[2006] NSWCA 81Koufos v C Czarnikow Ltd [1969] 1 AC 350
Stuart Pty Limited v Condor Commercial Insulation Pty Limited [2006] NSWCA 334
List of Texts/Papers: Green CE (2006) McCaw and Hoskins J, Infectious Diseases of
the Dog and Cat (3ed) Chapter 8: Canine Viral EnteritisKahn, C M, Merck Veterinary Manual (9th ed) (2005), Elsevier Health Sciences
Nelson R & Couter C (1998), Mosby Missouri, Chapter 33 Disorders of the Intestinal TractNSW Government, Industry & Investment. Animal Welfare
Code of Practice – Breeding Dogs and Cats, 9. Transfer of
Ownership, 9.1.1.1 Puppies and kittens must not be rehomed
before they are 8 weeks of age
Tribunal: Ms E. Symons – Presidential Member
Date of Orders: 17 May 2013
Date of Reasons for Decision: 17 May 2013
AUSTRALIAN CAPITAL TERRITORY ) XD 100 of 2013
CIVIL & ADMINISTRATIVE TRIBUNAL)
BETWEEN:
LINA SCARDONI
Applicant
AND: PAUL DAVIS AND SHARON DAVIS
Respondents
TRIBUNAL: Ms E. Symons – Presidential Member
DATE: 17 May 2013
ORDER
1. Judgment for the Applicant in the sum of $2,382.00 being $2,255.00, for damages and filing fee of $127.00.
2. The Respondents’ Counterclaim is dismissed.
………………………………..
Ms E. Symons
Presidential Member
REASONS FOR DECISION
1.The Applicant filed a civil application on 31 January 2013 seeking payment from the Respondents of $2,000 for veterinary fees plus $955.00 for the costs associated with her purchase from the Respondents of a beagle puppy, Tomi. The total of the Applicant’s claim was $2,955 less $700.00 which the Respondents had paid to the Applicant, leaving $2,225.00.
2.The Respondents opposed the Applicant’s application and filed a Counterclaim seeking $1,100.00 being the sum of $750.00 paid to Dr Robert May for a Report and $350.00 for “Refund of originally given 100% refund for Puppy to 50% Refund as only required.”
Facts
3.On 23 December 2012, the Applicant contacted the Respondents in relation to their advertisement for the sale of beagle puppies on Trading Post. The Applicant entered into an agreement with the Respondents to purchase a beagle puppy, Tomi, for a total amount of $955.00, being $700.00 purchase price, $100.00 for the Respondents’ travel with Tomi to Sydney and $155.00 for Tomi’s air travel from Sydney to Canberra. The Respondents, who live at Rainbow Flat, near Forster NSW, drove Tomi to Sydney Airport on 24 December 2012 and Tomi was flown to Canberra Airport that same day where he was collected by the Applicant at 2 pm.
4.The Applicant took Tomi to Gungahlin Veterinary Hospital on 27 December 2012 where he was diagnosed with and treated for Parvovirus. The Applicant and the Respondents communicated by telephone and email in relation to Tomi on and after 27 December 2013.
5.The Respondents paid $700.00 into the Applicant’s bank account on 28 December 2012.
6.Tomi was euthanised on 31 December 2012. The Applicant has paid the veterinary fees of $2,000 charged by the hospital.
Hearing
7.The Application and Cross Claim were heard on 8 May 2013. The Applicant and the Respondents gave evidence and were cross examined. The Applicant called evidence from Dr Georgia Knudsen, from the Gungahlin Veterinary Hospital where Tomi was treated in Canberra. The Respondents called evidence from Dr David O’Hare, from Cape Hawke Veterinary Hospital in Forster and from Mrs Yvonne Ide.
8.Pursuant to section 62 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) the Tribunal reserved its decision.
Legislation
9.Sections 16 and 17 of the ACAT Act provide for civil dispute applications. While the Applicant lodged a Debt Application it appeared from the Application that the Applicant was seeking payment of damages from the Respondents for breach of a contract relating to the sale by the Respondents to her of a beagle puppy. This is a civil application.
10.The objects of the ACAT legislation are to be found in section 6 of the ACAT Act. Relevantly section 6 includes the following objects:
(a) to provide for a wide range of matters arising under legislation to be resolved by the ACT Civil and Administrative Tribunal; and
(b) to ensure that access to the tribunal is simple and inexpensive, for all people who need to deal with the tribunal; and
(c) to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice; and
(d) to ensure that decisions of the tribunal are fair; …
The Issues
11.There are four issues to be determined:
i.Tomi’s date of birth, and his age at date of sale;
ii.When Tomi contracted parovirus;
iii.Whether there was any agreement between the parties about liability for the veterinary cost of treating and euthanizing Tomi and, if so, the terms of such agreement; and
iv.(a) Whether damages are payable and if so, in what amount.
(b ) The Respondents’ counterclaim.
12.Before considering the issues the Tribunal noted, from the evidence, the emotional impact the events in this case have had on both parties.
13.The Applicant gave evidence that she had previously owned Pomeranian puppies which had lived until 17 and 19 years respectively. She treated her animals as part of her family. She said Tomi was special to her and, like her previous dogs, she treated him as part of her family. The situation with Tomi had caused her and her family a lot of emotional stress and grief. In her email to the Respondents dated 31 December 2012 she wrote “this has been so devastating”.
14.Mrs Davis told the Tribunal that she had been very distressed about the matters raised about Tomi as he was one of the puppies she had bred and she was attached to him. She and her husband breed Beagles and Labradors professionally and they were very concerned about the impact of this case on their reputation as breeders.
i.Tomi’s date of birth, and his age at date of sale;
Evidence and contentions
15.Ms Scardoni told the Tribunal that she had located the Respondents’ online advertisement selling Beagle puppies on Trading Post on 23 December 2012. The puppies were advertised as “Ready for new home – can be flown anywhere $800.00.”
16.She contacted the Respondents by telephone on 23 December 2012 in relation to the puppies and was told that they were in good health, 8 weeks of age, vaccinated and wormed. The Respondents emailed pictures of the puppies to her. She selected Tomi from a picture. They reached agreement in relation to the sale and purchase of Tomi which the Tribunal will return to later in the Decision. Mrs Davis drove Tomi from her home near Forster to Sydney Airport and he was then flown to Canberra from Sydney on 24 December 2012 where the Applicant collected him at 2 pm that day.
17.Tomi came with a folder which contained booklets and documentation in relation to worming, his vaccination certificate and his microchip certificate. His date of birth on the folder was 26 October 2012.
18.Tomi was unwell on 25 and 26 December 2012. On 27 December 2012 Ms Scardoni took him to Gungahlin Veterinary Hospital where he was tested for and diagnosed with parvovirus. The Tribunal will return to the issue of Tomi contracting parvovirus later in this Decision.
19.On 28 December 2012, when Ms Scardoni attended the veterinary hospital, the vet asked her about Tomi’s age as Tomi was small. She called Mr Davis from the vet’s surgery and asked him “the puppy’s date of birth and age.” She heard Mr Davis ask Mrs Davis and then heard her say “26 October 2012”.
20.When she returned to her home, Ms Scardoni said she looked at Tomi’s paperwork and checked his birthdate. She saw that his date of birth was 8 November 2012 on his vaccination record and on his microchip certificate. She then told the vet that these certificates said “8 November 2012” and the vet immediately said “That matches his size, eye colour and co-ordination.”
21.In cross examination Ms Scardoni denied that Mr Davis had said to her in that telephone conversation: “I don’t know – the date is on the paperwork.”
22.Dr Georgia Knudsen was the vet who treated Tomi at the Gungahlin Veterinary Hospital between 28 December 2012 and 30 December 2012. She said she has a Bachelor of Veterinary Science with Honours from Sydney University and has been practising as a vet for 10 ½ years. She conducts her veterinary practice at Gungahlin Veterinary Hospital with a number of vets including Dr Kim Cleary, Dr Donna Pekker and Dr Michael Hayward. The vets work on rosters. The vets involved in the treatment of Tomi were Dr Cleary from initial consultation on 27 December 2012 to hand over to her on 28 December 2012, and she had handed Tomi’s care over to Dr Pekker on 31 December 2012.
23.On 30 December 2012 she had a telephone conversation with Mr Davis to advise of Tomi’s diagnosis and to ask if he was able to contribute financially to Tomi’s treatment. By this stage she was aware of the conflicting dates of birth from Tomi’s veterinary paperwork (namely 26 October 2012 and 8 November 2012) and had suspicions that Tomi was younger than 8.5 weeks of age because of his size, coordination and eye colour. During this telephone conversation she said to Mr Davis “I do not believe the dog is 8 weeks” and he stated that the dog “was definitely younger than 8 weeks of age.” She believed that Tomi was then 7 weeks of age. She knew that puppies could not be sold before 8 weeks of age.
24.In cross examination Dr Knudsen was adamant that Mr Davis had said to her, in that telephone conversation that Tomi was definitely younger than 8 weeks. She denied Mr Davis’ suggestion that he had said “You should look at the paperwork. We do not sell puppies under 6 weeks.”
25.Mrs Davis denied Tomi was sold underage. She said they had another litter at that time. She had made a mistake when she had written his date of birth as 8 November 2012 on the vaccination certificate. She had initially written 1 November 2012 for Tomi’s date of birth and then changed it to 8 November 2012. She said that Tomi’s correct date of birth was 26 October 2012 and this date was written on the front of the folder of documents she had sent with Tomi on 24 December 2012.
26.She said she had arranged for Tomi and the two other puppies in the litter to have their vaccinations at 6 weeks and 3 days of age on 9 December 2012 as evidenced in the vaccination certificate. She said that the girls at the veterinary clinic had helped her complete the paperwork.
27.She also said that Tomi’s date of birth of 8 November 2012 on the microchip certificate which was signed and dated 22 December 2012 and on the certificate signed by her vet, Dr David Hare, and dated 24 December 2012 were also clerical mistakes. She provided the Tribunal with an unsigned copy, which she subsequently described as a ‘sample’, of the 24 December 2012 certificate on which she said she had amended Tomi’s date of birth from 8 November 2012 to 26 October 2012.
28.Dr David Hare told the Tribunal that he has a Bachelor of Veterinary Science and has been practising as a vet since 1994. He has been the vet for Mr and Mrs Davis’ dogs for about two years.
29.He had vaccinated Tomi on 9 December 2012 and microchipped Tomi on 22 December 2012. He had also signed the certificate dated 24 December 2012 certifying that Tomi was fit to travel to his new owners.
30.He said when he vaccinated Tomi on 9 December 2012 he wrote Tomi’s date of birth as 8 November 2012 on the certificate. He said Mrs Davis had given him the dog’s date of birth. He had not considered that if Tomi’s date of birth was what he had written, 8 November 2012, he would have only been 4 weeks old on 9 December 2012 when he was administering the vaccination usually given to puppies at 6 weeks of age. He had not checked the date of birth and did not discover that it was the wrong date until later. He said he must have overlooked the date of birth shown as 8 November 2012 on the other documents too.
31.If Tomi’s birthdate was in fact 8 November 2012 he agreed that Tomi would have only been 4 weeks old on 9 December 2012. However, he believed he was vaccinating Tomi when he was 6 weeks old on 9 December 2012. He said Tomi did not then look under age. He told the Tribunal that he would know the difference between a 4 week old puppy and a 6 week old puppy and there was no way he would vaccinate a 4 week old puppy with the vaccination due at 6 weeks.
32.He told the Tribunal that the incorrect date of birth was his fault and it was disappointing that there was a clerical error. He apologized for this error and said he has tightened up his procedures as a result.
33.In response to a question from the Tribunal, Dr Hare initially said he had seen Tomi on 24 December 2012, when he completed the certificate stating he was fit to travel to his new owners. When the Tribunal put to Dr Hare that Mrs Davis had already given evidence that she had taken Tomi to him at 5pm on 23 December 2012 and this was the day he had signed and given her the certificate, which he had dated for the following day, he conceded that that was the case and that he had not seen Tomi on 24 December 2012. He acknowledged there was no reason he could not have dated the Certificate 23 December 2012, the date he examined him, and certified in it that Tomi was fit to travel to his new owners within the next 24 hours.
34.He agreed that the Certificate he had signed on 23 December 2012 had also stated Tomi’s date of birth was 8 November 2012.
35.The Respondents had provided a Report[1] dated 12 March 2013 from Dr Hare with their Response. In that Report Dr Hare had written that he had examined Tomi “the day before the pup was due to travel.” He also stated in this Report “There was a clerical error as to his age. In my opinion he was the appropriate age for travel at the time of examination.”
[1] Exhibit R1 page 12
36.Mr Davis told the Tribunal that his wife had taken Tomi to the vet for a routine check on the day he left, 24 December 2012.
Consideration
37.The Tribunal has carefully considered all of the evidence before it including the documentary evidence. The Applicant said that the Respondents had told her on 23 December 2012 that the puppies were 8 weeks old; she had agreed to purchase an 8 week old puppy from them and from seeing the dates on Tomi’s veterinary records showing his date of birth as 8 November 2012 combined with her vet’s concern that he seemed underage, she believed that Tomi was under age when sold. This is contrary to the NSW Breeder’s Code[2] for selling puppies.
[2] NSW Government, Industry & Investment. Animal Welfare Code of Practice – Breeding Dogs and Cats, 9. Transfer of Ownership, 9.1.1.1 Puppies and kittens must not be rehomed before they are 8 weeks of age
38.As will be discussed later, the Applicant also relied on the Respondents’ statements that Tomi was 8 weeks old at sale when deciding to pursue intensive veterinary treatment for parvovirus as she believed, and her veterinary advice was, at 8 weeks of age Tomi had a good chance of recovery. As the treatment progressed without Tomi showing signs of improvement the issue of his correct age arose and the Applicant ascertained his birth date of 8 November 2012 on his various certificates.
39.The Tribunal was concerned about the evidence from Dr Hare and the fact that he apparently did not clarify Tomi’s date of birth when vaccinating him on 9 December 2012 when he completed the certificate which stated his date of birth was 8 November 2012. On face value this certificate represented that Tomi was 4 weeks of age when he was vaccinated.
40.The problem was exacerbated when Dr Hare signed two further certificates on 22 December 2012 and 23 December 2012 in which Tomi’s date of birth was also stated as 8 November 2012. Further, the last of these certificates was dated 24 December 2012.
41.Dr Hare did not examine Tomi on 24 December 2012 and he did not sign that certificate on 24 December 2012. Notwithstanding Mr Davis said that his wife had taken Tomi to the vet on the day he left, the Tribunal is comfortably satisfied from the evidence that Dr Hare saw Tomi and signed the certificate on 23 December 2012 and not the day he left, 24 December 2012. It was obvious from that certificate that with a date of birth of 8 November 2012 Tomi would only have been 6 weeks old on 23 or 24 December 2012 and too young to be sold or rehomed.
42.If, as the Respondents would urge upon the Tribunal, Tomi’s date of birth was 26 October 2012, all of the certificates upon which the purchaser and the purchaser’s vet were entitled to rely incorrectly stated the true age of the puppy.
43.The evidence from the Respondents and Dr Hare in relation to Tomi’s date of birth was unsatisfactory. The only evidence, apart from Mrs Davis’ evidence, that Tomi was born on 26 October 2012 was a letter from Rachel Innes dated 2 March 2013 [3] in which she stated that she had purchased a beagle puppy with a date of birth of 26 October 2012 from the Respondents on 27 December 2012 and had been contacted by Mr Davis the following day and informed that another pup from the ‘same litter’ had been sick.
[3] Exhibit R1 page 14
44.Mrs Davis said that Tomi was born on 26 October 2012; however she acknowledged that there were two litters born around the same time and this was the cause of the confusion about the dates. She said she made a mistake in the dates. She did not state that the other litter was born on 8 November 2012.
45.Apparently a date of birth of 26 October 2012 was written on the folder which contained Tomi’s certificates and accompanied him on the flight to Canberra. This folder was not produced at the hearing. It had not been subpoenaed by the Respondents.
46.The Applicant has the onus of proving, on the balance of probabilities, that Tomi’s date of birth was 8 November 2012.
Conclusion
47.The Tribunal has doubts about Tomi’s true date of birth. On the one hand, the Tribunal has evidence of Dr Hare’s poor paperwork and the less than satisfactory explanation from him and Mrs Davis as to how the ‘wrong’ date of birth in the written records happened.
48.On the other hand, the evidence from the Applicant and Dr Knudsen was that Tomi appeared younger than 8 weeks of age when he was admitted to Gungahlin Veterinary Hospital. They relied on the veterinary observations, and then on the paperwork signed by Dr Hare and statements made by Mr Davis to support the Applicant’s claim that Tomi’s date of birth was 8 November 2012 and that he was sold at 6 weeks of age.
49.The Respondents are professional breeders; they are aware of the Code and were emphatic that they did not sell an underage puppy. Dr Hare admitted that he had not checked the date and had relied on Mrs Davis telling him the date he had written on the certificates. Once the issue of the date of birth arose Dr Hare and Mrs Davis acknowledged the clerical error. Dr Hare’s professional evidence was that Tomi, on 23 December 2012, was of the appropriate age to travel, namely 8 weeks.
50.When Tomi was examined at the Veterinary Hospital he was unwell and strongly positive to parvovirus. This may have contributed to veterinary concerns about his true age.
51.Given the state of the evidence, the Tribunal finds, although there is a doubt about Tomi’s true date of birth, it cannot be satisfied on the balance of probabilities that he was born on 8 November 2012. This part of the Applicant’s claim fails.
ii.When Tomi contracted parvovirus
Evidence and Contentions
52.Ms Scardoni’s evidence was that she had arrived at the Canberra Airport in time to collect Tomi at 1.30pm, being the collection time advised by the Respondents. Due to construction work at the airport she had not been able to immediately locate where she was to collect Tomi. She collected him at 2pm.
53.She took Tomi home from the airport and said Tomi seemed tired and wanted to sleep so she let him sleep. That night he had some puppy food and water. He spent the first night inside her home, in the laundry.
54.The next day, 25 December 2012, she said Tomi appeared really tired and wanted to sleep. He refused to eat. She thought he might have had a stomach bug and still been tired from his car trip from the Respondent’s home near Forster to Sydney Airport and his air travel the previous day. She forced him to drink water using a teaspoon. Tomi’s condition was much the same the following day, 26 December 2012, except that he was vomiting which she thought was associated with a stomach bug. He then developed diarrhoea.
55.Her vet was the Gungahlin Veterinary Hospital and it was closed over Christmas until 27 December 2012. She took Tomi to the vet in the morning of 27 December 2012 and saw Dr Pekker who checked Tomi and told her she thought he might have parvovirus.
56.Ms Scardoni said when she realized that Tomi potentially had a serious illness she took him home and telephoned Mr Davis and told him of the possible diagnosis. She said Mr Davis said “Tomi could be testing positive due to his recent vaccine. Take him back to the vet as he will be dehydrated.”
57.She took Tomi back to the vet who carried out a parvovirus test. The test result was positive and Tomi was diagnosed with parvovirus. She called Mr Davis again and he said, again, he thought the positive result was due to the recent vaccine. Ms Scardoni said she asked the vet if this could have happened and the vet told her “This was not the case.”
58.Ms Scardoni called Mr Davis again and told him what the vet had said. He then said to her “his children had taken that puppy to the beach without his permission prior to the puppy being flown to Canberra.”
59.Dr Knudsen said that parvovirus causes clinical signs of vomiting and haemorrhaegic diarrhoea 5 to 12 days after the dog is infected via the faecal-oral route. When Tomi was brought to the vet on 27 December 2012 a full physical examination was conducted and Tomi was tested for parvovirus which returned a strong positive result.
60.The Respondents claimed that Tomi could not have contracted parvovirus while in their care and before he flew to Canberra. They believed that Tomi had contracted parvovirus after the time they delivered him to Sydney Airport on 24 December 2012. Their vet had advised them that parvovirus shows up between 3 to 5 days following exposure and the fact that the dog was diagnosed on 27 December 2012 supports the Tribunal finding that Tomi had contracted the virus after he had left the Respondents’ care on 24 December 2012. They also told the Tribunal that no other dogs in their care when they had Tomi had developed parvovirus.
61.Dr Hayward from the Gungahlin Veterinary Clinic stated in his Report dated 8 March 2013 (Exhibit A3) –
“The incubation period of CPV-2 in the field is 7-14 days; experimentally, the incubation period has been found to be 4 to 5 days. With CPV-2a and -2b strains, the incubation period in the field can be as brief as 4 to 6 days.”[4]
[4] Green CE (2006) McCaw and Hoskins J, Infectious Diseases of the Dog and Cat (3ed) Chapter 8: Canine Viral Enteritis, at page 63
62.Dr Knudsen was asked questions about the following statement in the Merck Veterinary Manual[5] relied on by the Respondents –
“Both ELISA and immunomigration test kits are available for detection of CPV antigen in feces. These tests are fairly specific for the virus, but dogs that have been recently vaccinated may transiently shed antigens that are detected by the test kits. The sensitivity is somewhat lower for several reasons. Fecal shedding only occurs for 7 – 10 days, beginning on day 3-5 following exposure, so virus is not always detectable in dogs with clinical signs.”
She said that there are a lot of different texts with different shedding days. If the incubation is a minimum of 3 days the dog can shed from day 3 and have diarrhoea from day 5-6, usually on day 7. She referred to the text Small Animal Internal Medicine[6] which states –
“Canine parvovirus – 2 (CPV-2) causes clinical signs of vomiting and haemorrhagic diarrhoea 5 to 12 days after the dog is infected via the faecal-oral route.”
[5] Kahn, C M, Merck Veterinary Manual (9th ed) (2005), Elsevier Health Sciences
[6] Nelson R & Couter C (1998), Mosby Missouri, Chapter 33 Disorders of the Intestinal Tract p 435-436
63.She said, in her opinion, Tomi had parvovirus before he left the Respondents’ care, but was not yet shedding and this would explain why it was not passed onto the other puppies in the Respondents’ care.
64.Dr Knudsen said parvovirus is highly virulent and a dog only needs little exposure to it to contract it. The clinical signs of parvovirus are gastro and haemorrhagic diarrhea. These were Tomi’s presenting clinical signs on 27 December 2012 and parvovirus was immediately suspected and then confirmed by the Speed® test. She was in no doubt that Tomi had parvovirus.
65.Dr Knudsen said when she spoke to Mr Davis on 30 December 2012 about Tomi’s diagnosis Mr Davis was very concerned about the diagnosis as he had 20 other puppies on the property. He told her his sons had taken Tomi to the beach a couple of days before sale without his approval and that he believed this is where the virus was contracted. She said she also told Mr Davis that Tomi had passed live worms and he told her that he had a worm problem the week before with other puppies on his property.
66.Given that Mr Davis had said the puppy had been taken the beach before sale she expressed the opinion that, being a public place, it is likely that Tomi contracted parvovirus there.
67.In her opinion puppies should not be taken to a public place until fully vaccinated, if using a new vaccine, at 12 weeks. She had read Dr Hare’s vaccination certificate. He had used an ‘older’ vaccine which was usually administered at 6 weeks, followed by the next vaccine at 10 weeks and then a puppy would be fully vaccinated with the final vaccine at 14 weeks.
68.Dr Knudsen was asked if she thought Tomi could have contracted parvovirus on 24 December 2012. She said Tomi’s reported clinical history was lethargy on 25 December 2012 and vomiting on 26 December 2012 so it was highly unlikely that he had contracted parvovirus 2 days before.
69.Dr Knudsen did not agree with Mr Davis when he put to her in cross examination that he had not mentioned to her that Tomi had been to the beach. She said she did not believe she could have been mistaken about that part of the telephone conversation. She said “There is no reason for me not to tell the truth.”
70.Dr Knudsen said she had agreed in that telephone call with Mr Davis that she had first thought Tomi had passed hook worms and he had said that hook worms were not visible to the naked eye. She acknowledged that Tomi had in fact passed adult worms, not hook worms, and said he had picked the worms up at the Respondents’ property. She and Mr Davis had discussed an appropriate worming regime.
71.Mr Davis said he first became aware that Tomi was ill on 27 December 2012 when Ms Scardoni telephoned him and told him the vet thought he had parvovirus. She told Mr Davis that Tomi had been sick on 26 December 2012 and not drunk for a few days. He had asked her why she had not contacted him before and why she had not got care for Tomi within 24 hours. He told her to take the dog back to the vet as he would be dehydrated. He told the Tribunal if Tomi had parvovirus the chance of an 8 week old puppy surviving was 20%.
72.The Respondents did not doubt that Tomi had parvovirus and were distressed by this; however none of their dogs or puppies contracted it. They believed that Tomi had picked up the virus in transit on 24 December 2012. They submitted that Dr Knudsen could not state where or when Tomi contracted it. They also submitted that the evidence about Tomi’s symptoms and the dates they were observed was confusing.
73.The Respondents said that their son, who could have been the only one who could have taken Tomi to the beach, was overseas between 12 December 2012 and 24 December 2012. It was not possible that he had taken Tomi to the beach during that period; therefore it was not possible that Tomi had contracted parvovirus at the beach.
74.Dr Hare told the Tribunal that, in his opinion, it was theoretically possible that Tomi may have picked up parvovirus in transit although it was hard to know when he contracted it. Dr Hare also said that it was theoretically possible, if Tomi had been to the beach before he was sold, that Tomi had contracted parvovirus at the beach.
75.Dr Hare said in his Report[7] dated 12 March 2013 in his opinion Tomi was fit for travel and his temperature was normal at the time of examination on 23 December 2012. In response to a question from the Tribunal, Dr Hare said if the virus incubation period was 3 days and Tomi started vomiting on 26 December 2012 it was more likely that he had contracted parvovirus before he was transported on 24 December 2012.
[7] Exhibit A1 page 12
76.Ms Yvonne Ide, Mrs Davis’ mother, said she had accompanied her daughter and Tomi on the car drive from the Respondents’ home to Sydney Airport. The drive took about 4.5 hours. Tomi had travelled in a crate.
77.She was a retired nurse. She described Tomi’s condition during that trip as ‘asymptomatic.’ Her daughter had changed the carpet in the crate when they arrived in Sydney. The airline had checked the puppy and everything seemed to be routine.
Consideration
78.The Applicant contended that Tomi had contracted parvovirus before he left the Respondents’ care.
79.The Respondents contended that Tomi was well when he was examined by Dr Hare, which the Tribunal is satisfied occurred on 23 December 2012, and that Mrs Davis and her mother believed he was well when they drove him to Sydney Airport and when he was accepted by the airline to be flown to Canberra on 24 December 2012.
80.The Respondents submitted to the Tribunal that Tomi had contracted parvovirus on 24 December 2012, possibly during the flight to Canberra or while waiting at the airport for the Applicant for 30 minutes after he arrived there.
81.The Respondents provided a report from Dr Robert May from Chipping Norton Veterinary Hospital dated 14 March 201. He did not give evidence. He had not seen Tomi. He stated that a parvoviral antigen test can be positive for 5-12 days after vaccination and a false positive cannot be discounted. He referred to the incubation period of 3-8 days in the current Merck Veterinary Manual and stated in his opinion transport infection was a distinct possibility.
82.Both Dr Knudsen and Dr Hare gave evidence about the incubation period for parvovirus. Both parties provided texts which stated different incubation periods.
83.Tomi’s vaccination certificate stated that he had been vaccinated on 9 December 2012, and based on Dr May’s report, 12 days post that date would have been 21 December 2012. The Tribunal is satisfied that the parvovirus test was not carried out until 27 December 2012, five days after the maximum time stated by Dr May that could cause false positive results from the vaccination and three days after the maximum time for false positive results stated by Dr Hare.
84.Dr Knudsen’s evidence was that the positive result was not caused by the vaccination. For the reasons set out in the previous paragraph, the Tribunal accepted her evidence and was satisfied that the positive result was not caused by the vaccination.
85.The Tribunal accepted the Applicant’s evidence that Tomi was lethargic on arrival and Christmas Day. Dr Knudsen described lethargy as a typical early parvovirus symptom. The other symptoms were vomiting and diarrhea. The Tribunal accepted the Applicant’s evidence that Tomi vomited on 26 December 2012 and subsequently developed diarrhoea and finds accordingly.
86.The Tribunal accepted Dr Knudsen’s evidence and is satisfied that Tomi had haemorragic diarrhoea on 27 December 2012. The Tribunal also accepted Dr Knudsen’s evidence and was satisfied that the Speed® test returned a strong positive result on 27 December 2012.
Conclusion
87.The Tribunal was satisfied, from considering all of the evidence, that Tomi had already contracted parvovirus before he left the Respondents’ care. The Tribunal was further satisfied that the Respondents’ other puppies and dogs were not infected by Tomi because he had not started shedding while in their care.
88.In coming to this finding, it was not necessary for the Tribunal to make a finding in relation to how Tomi contracted parvovirus. The evidence from both Dr Hare and Dr May was that the incubation period for parvovirus was 3 or more days. The Tribunal has already found, above, that Tomi was lethargic on arrival on 24 December 2012 but ate that evening, lethargic on 25 December 2012 and not eating; he vomited on 26 December 2012 and he then developed diarrhoea which was observed by Dr Pekker when Tomi was examined at the Gungahlin Veterinary Clinic on 27 December 2012.
89.The Tribunal was comfortably satisfied from the evidence that Tomi exhibited parvovirus clinical signs of lethargy on 24 December 2012 and 25 December 2012, and on 26 December 2012 he vomited. If the incubation period was 3 – 5 days, then the Tribunal was satisfied that Tomi contracted parvovirus, at the earliest three days earlier, i.e. 23 December 2012. If the incubation period was 5 days then Tomi contracted parvovirus on 21 December 2012. Tomi was in the Respondents’ care on 21 December 2012 and 23 December 2012
90.The Tribunal noted that Dr Hare, when made aware of the evidence before the Tribunal of the dates of occurrence of Tomi’s various clinical symptoms, agreed that it was theoretically possible that Tomi had already contracted parvovirus before 24 December 2012.
91.The clinical and veterinary evidence in relation to incubation of parvovirus left the Tribunal in no doubt that Tomi had contracted parvovirus while in the Respondents’ care.
92.The Tribunal was satisfied that the Applicant had discharged the onus on her in relation to this issue. This part of her claim was successful.
iii. Whether there was any agreement between the parties about liability for
the veterinary cost of treating and euthanizing Tomi and, if so, the terms
of such agreement.
Evidence and Contentions
93.The Applicant said that she did not receive any paperwork from the Respondents at the point of sale or afterwards guaranteeing if within three days Tomi was not acceptable to her for any reason the Respondents were required to take Tomi back and refund her 50% of the purchase price as required under the NSW Animal Welfare Code of Practice. She did not know of this requirement. The first she heard of this was when she was reading the Respondents’ statement lodged in these proceedings.
94.She also said that the Respondents did not inform her that the Code’s Guidelines stated that if a dog or cat, within 7 days of purchase, was not acceptable to her for health reasons, excluding injury, and her complaint was supported by a veterinary practitioner, the Code required[8] that the breeder and owner should negotiate in good faith to achieve an equitable outcome.
[8] At 9.1.2.2
95.The Applicant said that, after the first visit to the vet on 27 December 2012, she called Mr Davis from her home and informed him that the vet suspected Tomi had parvovirus. She said Mr Davis said he believed that the puppy had an upset tummy from the change of food and told her to take the puppy back to the vet for hydration. At no stage was there a discussion about the puppy being returned to Mr Davis.
96.After the Applicant took the puppy back to the vet the vet carried out the Speed® test and the result was a strong positive to the virus. The vet told her the cost to treat parvovirus could be anywhere from $2,000 to $4,000. She called Mr Davis again and told him of the result. He said he thought the positive result was due to the recent vaccination. She discussed this with the vet, and then called Mr Davis back. In this telephone call, Mr Davis told her that he believed the puppy had either contracted parvovirus at the beach before he left or during transport to Canberra. He said he would speak to his wife and call back. He called back shortly and said he would put $700.00 towards the vet costs. He suggested putting the puppy to sleep.
97.The Applicant said that she accepted the offer of $700 and was thankful for the financial help. At this stage she said she was unaware that Tomi was underage; had worms; that, according to her veterinary advice, parvovirus had an incubation period of 5 plus days; and that he had contracted parvovirus while in the Respondents’ care. She had asked the vet if the puppy had a good chance of survival before commencing the treatment and had been advised for an 8 week old puppy the odds were good.
98.She decided to have Tomi treated. It was after commencing the treatment that the vet had questioned Tomi’s age. This was when she called Mr Davis again about Tomi’s age (see above) and checked Tomi’s date of birth on the vaccination and microchip certificates.
99.The Respondents said that the first they knew of any issue with Tomi was the Applicant’s telephone and email contact on 27 December 2012. They acknowledged that the Applicant had not been given a written guarantee as required by the Code but said the Applicant had been told of the Code requirements when Tomi was sold to her, namely - that she had to let them know within three days if there were any concerns. They were concerned that the Applicant had not sought veterinary help for Tomi earlier than 27 December 2012 and pointed out that Canberra had an Animal Emergency Centre in Fyshwick which was opened throughout the Christmas period in 2012.
100.The Respondents said that they requested that the Applicant return Tomi immediately on 27 December 2012 and offered to give her a full refund of $700.00 being the cost of the puppy component of the purchase price; they retained the balance of $255 being $100 for their travel expenses in driving Tomi from Forster to Sydney Airport and the remainder was for the cost of freighting Tomi to Canberra.
101.The Respondents said that the Code only required them to refund 50% of the puppy’s purchase price, but they offered $700.00 in good faith. The Respondents described this offer as “without prejudice.” They knew that the Gungahlin Veterinary Hospital had quoted between $2,000 and $4,000 for Tomi’s treatment.
102.The Respondents said that they offered to pay for Tomi to be put to sleep to save any more suffering for Tomi and the Applicant’s family.
103.The Applicant had told them she did not wish to put Tomi to sleep. She would talk with her husband and they would decide whether to go ahead with treatment or to have him put to sleep.
104.The Respondents paid $700 to the Applicant on 28 December 2012, which was the date the Applicant had given them the banking details. They had received an email from the Applicant that day in which she had stated “Thank you for being so understanding. We will recommend you to anyone who wants a beagle. It is a huge expense for us but I couldn’t have him put down.” Mrs Davis had sent an email in reply in which she stated “The amount of $700 has been placed into your nominated account to assist with your costs as agreed between yourself and paul (sic). All the best to you and your family & especially Tomi.”
105.The Respondents submitted that the Applicant was well aware, at this stage, that they had requested Tomi’s return to them, and that they had recommended to her that, given he had parvovirus, he be euthanized. They also submitted that the Applicant knew, in accepting the payment of $700.00, their contractual relations had come to an end. They reiterated that they gave no permission to anyone to intensively treat Tomi. They said the intensive treatment was the Applicant’s decision. That were not willing to contribute to what they described as “an exorbitant and expensive treatment with no guaranteed of a positive and beneficial for the puppy outcome.”[9]
[9] Response page 4
106.The Respondents also said that Mr Davis had spoken to Dr Knudsen and informed her they did not consent to the treatment and wished the puppy to be euthanized; she had replied that she had the contract with the Applicant and would be directed by them.
107.The Respondents also told the Tribunal that Dr Knudsen had spoken with Mr Davis on 30 December 2012 to see if he could pay some funds towards Tomi’s bill and he had advised her that they had given the Applicant a full refund on 28 December 2012, the payment was without prejudice and the contract between them and the Applicant had ceased.
Consideration
108.The Tribunal was satisfied from the evidence that the cost of Tomi’s treatment by Gungahlin Veterinary Hospital was $2,000.00. The Tribunal noted from Dr Hayward’s Report (EX A3) that no charges for hospitalization and nursing care, veterinary examinations, medications and euthanasia were levied against the Applicant on day 5. The Tribunal was satisfied that the amount of $2,000.00 charged by the Gungahlin Veterinary Hospital was reasonable for the treatment performed and this amount has been paid by the Applicant.
109.The Tribunal was also satisfied from the evidence that as a result of a telephone conversation between the Applicant and Mr Davis, on or about 28 December 2012 Mrs Davis deposited $700 into the Account nominated by the Applicant. The $700 was a refund of the cost of the puppy, excluding transport costs. The email from Mrs Davis informing the Applicant of this payment states that the payment is “to assist with your costs as agreed between yourself and paul.” If the payment was intended to terminate the contract, the Tribunal would have reasonably expected the email to state this and it did not.
110.Essentially the Applicant’s claim was for breach of contract in that Tomi had parvovirus when he was sold as a healthy puppy. As Tomi’s owner she elected to seek veterinary advice and to act on that advice. She said she did not accept Mr Davis’ opinion when he had suggested having Tomi put to sleep, as Mr Davis was not a vet. As she told the Tribunal, she wanted to give Tomi a chance.
111.The Applicant brought this action because the Respondents had breached a fundamental term of the contract by not supplying her with a healthy puppy. She had sought veterinary treatment in the hope that it would make Tomi well. This treatment cost her $2,000.00. Had she been sold a healthy puppy she would not have had to incur this expense. She did not regard the offer by the Respondents to pay $700.00 as bringing the contract to an end.
112.The Respondents submitted that their contract with the Applicant came to an end when she accepted their payment of $700.00 and that they were not liable to pay any more. In their counterclaim they sought a refund of $350.00 on the basis that the Code only required them to refund 50% of the purchase price. They also sought payment to them of $750.00 for Dr May’s medical report.
Conclusion
113.The Tribunal has considered all of the material before it and the matters set out above. The Tribunal has already found that Tomi had contracted parvovirus while in the Respondents’ care. The Tribunal was satisfied that the Respondents breached the contract they had with the Applicant to sell her a healthy beagle puppy.
114.Once the Respondents became aware of Tomi’s diagnosis they offered to have him returned to them. The Applicant rejected this offer. However, this was an impractical resolution given that Tomi had been diagnosed with parvovirus and was in isolation at Gungahlin Veterinary Hospital. They urged the Applicant to have him put to sleep and offered to pay for the associated veterinary expenses for that procedure. They paid the Applicant $700.00. They also asked Dr Knudsen to put Tomi to sleep.
115.While the Respondents’ evidence was that after making various offers to resolve the matter, they offered to and paid $700.00 to the Applicant believing that the contract between them would come to an end with that payment; the Tribunal is not satisfied from the evidence that the Applicant understood and accepted that this payment would be ending their contractual relations. Emotions were running high at this stage. Where the evidence of the Applicant and the Respondents differed the Tribunal preferred the Applicant’s evidence.
116.The Tribunal cannot be satisfied from the evidence that the Applicant intended, by accepting the payment of $700.000, to bring to an end the contractual relations between herself and the Respondents. In support of this finding the Tribunal would have considered if the contract was being terminated by the Respondents, they would have stated this unequivocally in their email to the Applicant on 28 December 2012. It was not clear to the Tribunal why, knowing that Tomi had parvovirus, they did not refund 100% of the purchase monies paid by the Applicant, namely $955.00, and not just the component for the puppy.
117.The Tribunal was satisfied that the Respondents are liable to compensate the Applicant for her loss and damage as a result of their breach of the contract with the Applicant for the sale of a healthy puppy. The sale of a healthy puppy was a fundamental term of the contract.
(iv) (a) Damages
118.The Applicant seeks damages being the balance of purchase monies paid by her, $255.00, as well as the veterinary fees of $2,000.00 she incurred as a result of the Respondents’ breach of the contract.
119.In considering damages the Tribunal considered the test by Lord Reid in Koufos v C Czarnikow Ltd[10]-
[W]hether, on the information available to the defendant when the contract was made, he should, or a reasonable man in his position would, have realised that such loss was sufficiently likely to result from the breach of contract to make it proper to hold that the loss flowed naturally from the breach or that loss of that kind should have been within his contemplation.
[10] [1969] 1 AC 350, Lord Reid at 385; Stuart Pty Limited v Condor Commercial Insulation Pty Limited [2006] NSWCA 334
120.In Cripps v G & M Dawson Pty Ltd[11] Santow JA said of the degree of contemplation necessary:
One does not need to contemplate the precise degree of loss, or its scale, as that is to raise the bar too high; one is then looking at "the precise details of the events giving rise to the loss". Instead of adopting an unduly high level of classification of the damage as that which the parties must have contemplated, it suffices to concentrate more broadly on the kind or type of loss …
[11] [2006] ANZ ConvR 350; [2006] NSWCA 81
121.An innocent party is entitled to recover damages caused by virtue of the breach of contract subject to the test of remoteness. The loss must be one which was "not unlikely"; or was "liable" to result.
122.Mr Davis’ evidence was, when the Applicant told him that the veterinary costs would be between $2,000 and $4,000, that she would be embarking on an exorbitant and expensive procedure with less than 20% prospects of success. The Tribunal is satisfied that the Respondents were well aware of the prospective veterinary costs of treating parvovirus.
123.The Respondents are dog breeders. Given their experience when forming the contract with the Applicant, they should have reasonably supposed that if they failed to provide a healthy puppy the purchaser would be exposed to these costs. The Tribunal was satisfied that the test of remoteness to claim these damages has been satisfied.
124.The Tribunal finds that the damages claimed by the Applicant for the breach of contract were reasonably foreseeable.
125.The Tribunal will enter judgment for the Applicant in the sum claimed and the filing fee incurred by the Applicant in bringing these proceedings.
Damages (b) Counterclaim
126.For the reasons set out above the Tribunal is not satisfied that there is any merit in the Respondents’ counterclaim. The Counterclaim will be dismissed.
………………………………..
Ms E. Symons
Presidential Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A
FILE NUMBER:
XD 13/100
PARTIES, APPLICANT:
Lina Scardoni
PARTIES, RESPONDENT:
Paul Davis and Sharon Davis
COUNSEL APPEARING, APPLICANT
COUNSEL APPEARING, RESPONDENT
SOLICITORS FOR APPLICANT
SOLICITORS FOR RESPONDENT
TRIBUNAL MEMBERS:
Ms E. Symons – Presidential Member
DATES OF HEARING:
8 May 2013
PLACE OF HEARING:
ACAT, Canberra
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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2
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