Written By Kit Williams
What is TORT LAW?
A tort is a legal wrong which one person or entity (the tortfeasor) commits against another person or entity and for which the usual remedy is an award of damages. Many torts protect fundamental liberties, such as personal liberty, and fundamental rights, such as property rights, and provide protection from interferences by other people or entities and by the Crown. In short, torts protect people from wrongful conduct by others and give claimants a right to sue for compensation or possibly an injunction to restrain the conduct. Like criminal laws, laws creating torts also have a normative or regulatory effect on conduct in society.
Jason Newman
Principal at Gilchrist Connell
Jason Newman is a Principal at Gilchrist Connell where he specialises in the practice of tort law. As part of his role, Jason manages product, public and professional litigation claims. He has also served on the Ethics Committee of the Law Institute of Victoria (LIV) for over 10 years and is a past recipient of the Legal Ethics Award. As a Vice President of the Australian and New Zealand Education Law Association, Jason has also received the Rogers Legal Writing Award for his article in the Law Institute Journal on professional negligence in education. Kit asked Jason a variety of questions about tort law as well as about his personal experiences within the industry.
INTERVIEW
As a student, were you certain that tort law was the area that you wanted to practice in?
No. I originally thought I wanted to do employment law. I was interested in tort law; it was certainly one of those subjects I enjoyed a lot, but it wasn’t top of my list. So, I did employment law. But when I got into practice, that’s when I figured out the things I liked, and they were different from the ones I liked at university.
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So, how did you start to develop more of an interest in tort law?
It was really due to exposure to torts in practice. When I started out, I was at a firm that did a bit of torts, admin, family law and crime; a fair smattering of a lot of different things. And I just found myself gravitating towards the tort law because I found the circumstances interesting, and I liked the negotiation side of it. The criminal law side of things I found was a little too difficult and there was less room for negotiation. I then moved to a place where most of what I did was torts and I think that's where my interest really started to grow.
How is negotiation within tort law different from other areas of the law and how did you find that appealing?
Essentially torts law is arguing about money, and it's a fairly simple measure. But what goes on behind that allows you to make judgments about the likelihood of various outcomes in a case. So I found that process interesting as a sort of intellectual battle with somebody else who takes a different view of how a set of circumstances might play out in court. It’s fairly clean in the sense that there are only a certain number of circumstances that might occur, and the fact scenarios make that interesting for me. There are never two cases exactly the same in tort law whereas I found criminal law to be a little too repetitive and the negotiation wasn't as easy or as satisfying.
“There are never two cases exactly the same in tort law.”
How much of what you now practise is tort law?
I would guess probably 60 to 70%. But that number might be different if I took into account things that are tort related. For instance, if a school or business approaches me and wants some risk management, the advice that I would give them would be informed by torts law. Technically speaking it’s contractual advice but, in reality, it's largely informed by my experience in the torts side of things. The rest of my involves discrimination, insurance law, inquests, and a variety of other things.
Could you give us an overview of a day in your life as a tort lawyer?
Well, I can talk about today. I received two or three advices that we are providing to our clients about torts cases. Two of them were cases of sexual abuse while in government-funded care and we’re providing advice to our client about what the reasonable settlement range might be for the person that was abused as well as his mother. So, my job was to review the letter of advice that a junior lawyer had written up and make some suggestions as to changes before having it sent off. The second thing I did today was go out to Kew and talk to a group of business managers from various schools to talk to them about the Privacy Act, data security, and the types of claims that can arise if you don’t keep your data safe. I also provided some help to a junior lawyer that is dealing with a director’s and officer’s claim, which isn’t strictly a torts claim. It is a director who is being sued by the liquidators for allegedly not complying with corporations law and there is a claim for $45M. We are attempting to negotiate the settlement of that claim. That is a typical day in many ways; helping out with advice work, talking to groups about torts related stuff and just generally about how legal issues arise.
“What I get a lot of satisfaction out of is getting a good result that I think is fair given the circumstances.”
What is the most fulfilling part of your job?
That’s a tough one. I think the most fulfilling part of my job is when we’ve achieved an outcome that I feel is a good one, a fair one. As a defendant lawyer in torts cases, it’s very rare to win or be completely successful because the odds are stacked against defendants in a lot of cases. This is for good reason; people don’t sue others because they just want to have a go. They sue because they think there’s a chance of proving a claim against the other party. So, as a defence lawyer, you’re already behind the starting line in a sense. What I get a lot of satisfaction out of is getting a good result that I think is fair given the circumstances. In fact, some of the best results I’ve gotten have been the quickest. I remember very early in my career a client gave me a file and I immediately thought was doomed to fail for the person suing. So, I asked to speak directly with the opposing solicitor, went through our story, and told them “There is no way you’re going to prove this case. You will fail.” Essentially, I convinced them, and they withdrew the suit. From start to finish it took about a week and, to me, that was one of the best results I ever had because it never should have got to court. It really just took somebody to explain why it would fail.
What skills do you need to work in tort law?
That’s a good question and I know this is a strange answer, but one word is “nous” or street smarts because the legal side is not all that complicated. It’s not rocket science. Torts pale in comparison to, let’s say, intellectual property law or tax. We’re not arguing about the law all that much. When we do it is interesting but most of the time what I need from a junior lawyer is a feel for the real world; a bit of nous and street smarts. I can’t have just academic lawyers that say: “This is the legal answer.” That’s great but what is the practical solution to the problem? Knowing the legal answer to the question isn’t really going to help you solve the client’s problem. So, that’s why I’m looking for people that are practically focused and have some street smarts about them.
“What I need from a junior lawyer is a feel for the real world; a bit of nous and street smarts.”
Other than torts and advanced torts, which electives would you suggest to someone wishing to pursue a career in tort law?
I learnt more doing professional practice in six months than I learnt in six years. If you want to be a torts lawyer, go and do professional practice. Almost everything I know about how to practice law I learnt in that six months. If I see that on a resume, I think the candidate has some idea of how the real world works. Firstly, you have to deal with actual clients, and some of them are quite difficult clients. That freaks some junior lawyers out if they’ve come out of university and they’ve never dealt with anybody. That can really hit them for six. I know when I started professional practice, I had no idea what I was doing. I had no idea how to handle a client. I had no idea how to practically help them. So, to me, that’s the most important thing for students to be able to do.
How do you manage your work-life balance?
Much better than I used to. Work-life balance depends on the place you choose to work. If you go to a place that pays you a lot of money, they’ll expect you to work a lot of hours. It’s a pretty straightforward bargain. I always say to junior lawyers that you have to be comfortable with the bargain you set. I could go to a place that expects me to do less work and they’ll pay me less. But I’ve found the position that suits me. I work 8 am - 6 pm most weekdays and I rarely work weekends. That works for me. It was difficult when my kids were young, but work-life balance is largely a product of where you work.
“My advice would be to try a lot of stuff at the start and don’t get pigeonholed too early on.”
What is one piece of advice you would give yourself back in university?
That’s a tough one. I think, looking back, I didn’t have the confidence that I would land somewhere that I was happy with. Jobs were a lot easier to get back then but I still think my advice to my younger self would be to try a lot of things and see what sticks. I kind of went for the first thing that looked good and felt okay and that’s been fine. I’ve enjoyed the career I’ve had thus far. But I think, if I had a bit more confidence in my ability to get work, I could have widened the net and perhaps tried other things as well. Having said that, I did get a fair spread of stuff at the start and there was a lot of things I didn’t like. So, my advice would be to try a lot of stuff at the start and don’t get pigeonholed too early on.
How can students identify what job opportunity is right for them?
It’s a lot about knowing yourself first; understanding what makes you tick and then seeing if you can match a work environment to that. To me, the work environment is really important. I’ve done the same work at four different firms, and I can tell you that at three of those firms I enjoyed the work very much. At one of those firms, I hated it with a burning passion and yet I was doing the same work. It wasn’t the work; it was the atmosphere of the firm. It was a disaster. I would never send anyone to work there. So, the culture and the people that you work with, for me, have always meant a lot more than the work itself. I would much prefer to do work that I don’t like with people that I do like than the other way around.
There are a few red flags that will tell you what the culture of a firm might be. One that I remember was when I applied at a firm and went in for an interview that started at 6 pm and finished at 7:30 pm. When I walked out, the only people that were in the office were four junior lawyers. I wondered why they were the only ones working at night and it didn’t look like they were close to finishing. I received an offer from that firm and thought better of it. It was a great firm, and they did good work, but it just wasn’t a culture that I was comfortable with. You need to know yourself so that you can match your particular needs and wants to a culture.
“It’s a lot about knowing yourself first; understanding what makes you tick and then seeing if you can match a work environment to that.”
What are some of the challenges that are unique to practising tort law?
I wouldn’t say that it is unique to tort law but you’re talking about human stories. You have to have a little bit of distance from them in order to do your job properly. One of the things that I found difficult as a junior lawyer, and even still as a senior lawyer, is that occasionally I’ll do work for injured plaintiffs, and I found it impossible to be objective. I identified too closely with the suffering they’d undergone. Whereas I find it a lot easier giving advice to defendants as they are not the ones who have suffered. Having said that, I deal with teachers that have been involved in some horrific cases and feel devastated. Those still affect me and, for me, that’s the biggest challenge in torts. As an example, we do work on sexual abuse claims. I don’t do a lot of it, but I do some and it has a huge emotional impact. That’s one thing you have to consider when coming into something like tort law; you need to understand we’re talking about human stories. There are real people behind them, and some are going to be upsetting.
I gave a job to a junior lawyer recently that involved the death of a 15-year-old student at school. It was a horrific death and before I handed the file over, I asked the junior if they were going to be okay with it because it’s pretty confronting. That’s the kind of thing we deal with quite a bit.
What has been a highlight in your career? What is the most exciting project or memorable case you have worked on?
The case that I talked about last week is probably one of the most memorable ones. It probably wasn’t the best outcome for anybody but that’s often the case.
Interviewers note: The case that Jason is referring to is one that he shared in a guest lecture as part of the Advanced Torts unit. The case was a sad and somewhat confronting one that involved a heroin addict who had to have her arm amputated after she passed out resting on a bedroom heater.
Jason represented the defendants in this matter, which were the landlord and real estate agent. At first, Jason was left scratching his head as to what grounds the plaintiff intended to argue negligence on the part of either the landlord or the real estate agent, as it appeared that the accident had resulted entirely from her own actions. However, the issue at hand was that the share housing the plaintiff lived in was required to have a smoke detector in every room, and there was no smoke detector in the room in question.
The case raised important questions of remoteness and causation. Was the kind of injury that the plaintiff suffered really of a kind that smoke detectors are installed to prevent? And even if a detector had been installed, would it have gone off before the plaintiff suffered a serious injury. These were the questions that Jason and his team needed to investigate as part of the negligence claim. In the end, an out-of-court settlement meant that the case was never run in a court of law. However, as Jason shared with me during the interview, it remains one of the most memorable that he has worked on.
Another highlight is being able to see the progression of a junior lawyer moving into their own way of doing things and becoming a fully-fledged practitioner. My offsider, who is now a partner of mine, and I have been working together for 11 years. She came in having no experience in torts whatsoever, took to it really well, and developed her own style. It was incredibly satisfying to me when she then launched as a partner of the firm with her own practice. Seeing other lawyers progress is very satisfying to watch, especially when I have had some small part to play.
“I think torts generally are a pretty blunt instrument and not a particularly nuanced way of sorting out the problems that we’ve got.”
How do you think tort law will develop in the future?
I think privacy is an interesting one and I do think that it is likely to become a much more active tort. You might find this surprising for me to say, but I think torts generally are a pretty blunt instrument and not a particularly nuanced way of sorting out the problems that we’ve got. I look to New Zealand that has a no-fault personal injury scheme as an example of a place that is doing a pretty good job dealing with these things. I think the tort system itself is as good as it can be. But it’s just not generally a great instrument of societal development. However, unfortunately, there’s going to be more and more tortious activities and privacy is one of those. Even some of the intentional torts, such as assault and trespass, are starting to be used a lot more these days. I don’t see them going away any time soon, but I don’t think the system is the best one we could have.
Do you have any tips in relation to the extracurricular activities students should participate in to help them stand out when applying for tort law positions upon graduation?
The thing I’m looking for in our practice, assuming that most people can do the law bit, is for a bit of street smarts. I’m not looking for a black-letter lawyer. I’m looking for people that can deal with somebody they don’t know and deal with them effectively. A great starting point for that is, frankly, people who have worked in retail situations or some other client-facing area. People who can deal with the general public under difficult circumstances are going to be well set up for the stuff we do. One of my juniors ran his own website business and knew how to deal with customers. A lot of the junior staff have been involved in the restaurant industry as wait staff or in the kitchens. I was involved in disability for a number of years, dealing with the parents of disabled kids. That teaches you a lot and that’s the sort of stuff I’m looking for on a resume. Can you deal with difficult customers?
Suggested Electives/activities:
Electives:
LAW4301 - Advanced torts
LAW4328 - Professional practice
LAW4811 - In House Placement
Experience/Activities:
Work experience in customer-facing jobs (such as retail or hospitality)
Legal professional practice
IN THE NEWS
Privacy Act review to examine privacy tort, direct action rights, and GDPR compliance (ZDNET, 2020)
The wide-ranging review will consider the definition of personal information; whether existing exemptions for small businesses, political parties, and the storing of employee records to comply with the Act should remain; whether individuals should gain the power to drag privacy violators to court; and whether a privacy tort should be created.
Victim of Police Brutality Commences Legal Proceedings (SYDNEY CRIMINAL LAWYERS, 2021)
“An Indigenous man is seeking damages in the New South Wales Supreme Court for spinal injuries sustained as a result of being violently thrown to the ground by police officers. The Court has heard the man sustained significant injuries including incomplete quadriplegia, cervical myelopathy, lower limb spasticity, a cervical spine injury and seven fractured ribs after the incident in Sydney’s south-west in March 2016.”
Australian Government consultation to protect Australia from digital piracy: are new directors' duties on the horizon? (CLAYTON UTZ, 2021)
“On 13 July 2021, the Australian Government opened consultation on options for regulatory reforms and voluntary incentives to strengthen the cyber security of Australia's digital economy. This call for views has been made in response to concerns about cyber security under-investment and information asymmetries (the difference in cyber security knowledge held by suppliers and consumers).”
Navigating new waves of tortious litigation (LAWYERS WEEKLY, 2021)
According to international law firm Crowell & Moring, COVID-19 has “changed the way that litigation is conducted, in ways that will be with us forever”. Such changes present challenges, the firm warned, for tort litigation.
learn more about tort law
Serious invasions of privacy in the digital era (australian law reform commission, 2014)
The ALRC’s proposal of a new a statutory cause of action for serious invasions of privacy.
another push for an australian privacy tort (normann witzleb, 2020)
A more recent update on possible tort law reform in Australia.
the procedural argument against recovery for lost chances in medical negligence (harry stratton, (2020) 49 australian bar review)
Short four-page article arguing against James Norton’s 2019 essay, which posits that plaintiffs should be able to recover in negligence for the lost chance of a better medical outcome.