Butcher’s faulty fridge leads to professional negligence claim

Date: Jun 30, 2017

A butcher has sought damages for professional negligence after claiming his lawyer did not correctly inform him of a clause in a lease contract regarding his rights over a refrigeration unit.

The plaintiff, a Vietnamese man with limited English, approached the defendant, a lawyer, to help him secure a lease on a butcher’s shop in NSW. A key part of the deal was that the landlord had agreed to supply and install a new refrigerated display counter because the existing unit was outdated.

According to the plaintiff, he emphasised the importance of the counter several times before signing the contract, claiming he would not go ahead with the lease until a fridge designed to his specifications was included.

Refrigerator malfunctions

A manufacturer modelled the unit on an existing one at a Marrickville butchery, but the new counter proved to be faulty and failed to keep meat at the correct temperature.

Customers began returning their purchases due to discolouration and the plaintiff was eventually forced to close down the butchery after technicians failed to fix the problem.

After the plaintiff complained, the landlord highlighted a clause in the contract that read:

“The tenant acknowledges that no warranty or undertaking has been given by the landlord in respect of the performance of the items installed by the landlord pursuant to this clause or the suitability of such items for the tenant’s particular proposed use of the premises and the tenant agrees that it has satisfied itself in this regard.”

The landlord was therefore supposedly absolved of responsibility and demanded $142,128 for breach of contract and unpaid rent. This led the plaintiff to pursue proceedings against his lawyer for failing to adequately inform him of the relevant clause within the contract.

Was the professional negligence claim a success?

The judge ruled that the plaintiff’s lawyer did not breach a duty of care to his client because he had only been enlisted to provide general advice on the lease. The relatively small fee ($860) indicated the nature of the defendant’s limited obligation on this matter.

Nevertheless, the judge noted that the plaintiff could still sue the manufacturer of the refrigeration counter, after an expert analysis showed it was clearly faulty while under warranty.

“On the plaintiffs’ evidence, [the manufacturer] supplied defective equipment and failed to remedy the problem, even though a guarantee had been given. [The expert] report is damning in its findings,” said District Court Judge Judith Gibson.

Whether the plaintiff will pursue a case against the manufacturer is yet to be seen.

Have you been a victim of professional negligence or feel you have a public liability claim? Please contact Gerard Malouf & Partners Compensation, Medical Negligence & Will Dispute Lawyers for more information.

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