Lloyd's Maritime and Commercial Law Quarterly
HARASSMENT AS A COMMON LAW TORT AND THE LIMITS OF CORPORATE STANDING
Anfield Tam*
Sir Elly Kadoorie v Bradley
Sir Elly Kadoorie & Sons Ltd v Samantha Jane Bradley
1 marks the first time that an apex court in a common law jurisdiction has recognised a common law tort of harassment, but it was also held, rightly, that a corporate entity has no standing in its own right to claim for it. While the Hong Kong Court of Final Appeal should be praised for keeping the common law abreast of technological advancements, the reasoning of the ruling would have been more convincing if the tort had not been justified as a departure from the recognised psychiatric condition requirement for compensable mental distress, but based on a personal right of being treated with dignity. Furthermore, while the Court was principled in limiting harassment to only natural persons, it also outlined the doctrinal justifications for corporate entities to restrain harmful acts against its employees.
Introduction
Unlike many other common law jurisdictions, the general tort of harassment is not a statutory creation in Hong Kong. Instead, it was first conceived by the Court of First Instance.2 To make out the claim, the victim must show that: (i) the nature of the harasser’s course of conduct, by words or by action, directly or through third parties, was sufficiently repetitive that any person ought reasonably to know it would cause worry, emotional distress or annoyance to another person; (ii) the harasser’s course of conduct objectively amounted to harassment in its ordinary meaning; (iii) the harasser intended to cause harm or injury to the victim by his course of conduct or was reckless about it; and (iv) the victim suffered actual damage as a result of the harasser’s course of conduct, which includes anxiety or financial loss. Undisputably, natural persons have standing to sue for harassment. What was unclear before this case was whether a corporate entity can do the same.
The Court of Final Appeal’s decision
The Court of Final Appeal was invited to give the final word. The plaintiff is a corporate entity and the defendant’s ex-employer. Between December 2020 and May 2022, the defendant allegedly sent more than 500 emails to the current and former officers, employees and legal representatives of the plaintiff. The plaintiff brought a claim in harassment and sought an injunction to restrain the defendant from continuing her conduct, but it was also brought in a representative capacity on behalf of the recipients. While the parties and all the courts below assumed the existence of a common law tort of harassment in Hong
* LLM Candidate and Project on the Foundations of Private Law Student Fellow, Harvard Law School. I am grateful to Kelvin Kwok for his insightful comments on an earlier draft of this note. All errors are mine alone.
1. [2026] HKCFA 2 (hereafter “Bradley”).
2. Lau Tat Wai v Yip Lai Kuen Joey [2013] 2 HKLRD 1197, [59–69].
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