In this very special series of exclusive articles for The Property Chronicle, Australian property legend Norman Harker reflects on his extraordinary 50-year life in real estate. He will pull no punches partly because, as he freely admits, Norman has a limited life expectancy of five years from December 2018 due to a diagnosed terminal blood cancer, which he has cheerfully accepted in preference to (in his words) “kicking the bucket without notice”. We are honoured he has chosen us to publish these brilliant, funny and incisive reflections of a lifetime in property.
My memory for names is terrible. I have trouble with remembering my own. But that’s understandable, because I’ve been called so many over the years.
The legal mumbo-jumbo following is important to our valuation profession and the contents of their reports.
Roger Whittaker isn’t my favourite C&W singer, but his name (less one ‘t’) reminds me of a turning point in Australian law that had immediate impact on our profession. Australia’s highest court’s decision in Rogers v Whitaker (1992) HCA 58; (1992) 175 CLR 479 (19 November 1992) concerned professional negligence. In USA ‘informed consent’ and requirements of the medical practitioner regarding information provided dates from Major Walter Reed in 1900. But In the UK and Australia in 1992, the only authority for a ‘patient orientated’ view on the advice to be given was a UK 1985 dissenting judgement of Lord Scarman.
‘The Australian’ newspaper reported the fascinating fight of Maree Lynette Whitaker. She was made blind in both eyes when she had an operation to correct blindness in the other eye. It was accepted that surgeons did not generally advise of the very small risk of that operation. Maree Whitaker, then blind and without legal assistance, contended that the measure of advice given should not be what other surgeons did, but what they reasonably believed the patient would want to know.
The key finding of Australia’s highest court is summed up in this single paragraph:
“The law should recognise that a doctor has a duty to warn a patient of the material risk inherent in the proposed treatment; a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should be reasonably aware that the particular patient, if warned of the risk, would be likely to attach significance to it.”
Our department’s legal lecturers, Diana Kincaid and Ralph Melano, confirmed the view that this would apply to all professions and to valuation reporting. We must add advice on risk or be exposed to claims if clients lost on a purchase where we had provided a valuation.
When apprehended by PC Plod and brought before the magistrates, I’d always pleaded ignorance: eg, “I thought zebra crossings were for zebras.” Magistrates mumbled, “Ignorantia juris non excusat.” (ignorance of the law is no excuse) before offering a £10 fine and next time taking a chance with a risk of going to jail for three turns of the thumb screws.
