Introduction

In a landmark decision, the Court of Final Appeal (“CFA”) in Sir Elly Kadoorie & Sons Limited v Samantha Jane Bradley [2026] HKCFA 2 has recognized harassment as an independent tort under Hong Kong common law. This ruling resolves prior judicial uncertainties and fills gaps left by the absence of a comprehensive statutory framework, unlike in jurisdictions like the UK with its Protection from Harassment Act 1997. The CFA emphasized the courts’ role in adapting the common law to “keep abreast of current social conditions and expectations”, particularly in a densely populated society like Hong Kong where technology amplifies harassing behaviours.

Background

Parties

The Appellant, Sir Elly Kadoorie & Sons Limited (the “Company”), is a prominent Hong Kong-based corporate entity that employed the Respondent for over a decade.

The Respondent, Ms Samantha Jane Bradley (the “Former Employee”), served as Director of Legal and Trust Management until her departure in late 2020.

Incident

Following the termination of her employment in October 2020 and a subsequent consultancy agreement ended in June 2021, the Former Employee sent over 500 emails from December 2020 to May 2022 to the Company’s officers, employees, agents, and external lawyers. These emails contained repetitive allegations of dishonesty, fraud, anti-money laundering breaches, modern slavery, intimidation, bullying, discrimination, and claims of “hush money”. The conduct was alleged to cause anxiety, emotional distress, and financial loss, interfering with the Company’s operations and staff well-being.

The parties’ positions

The Company argued that the Former Employee’s actions constituted harassment, seeking damages and an injunction in its own name and representatively for its employees, agents, and lawyers. It contended that the conduct breached its duty to provide a safe working environment, including protection from psychiatric injury.

The Former Employee’s specific defences are not detailed in the judgment, but the case focused on whether her conduct met the threshold for the tort and the Company’s standing to seek relief.

Key issues

The court considered the following issues:

1.       Does Hong Kong common law recognize an independent tort of harassment?

2.       Can a corporate entity sue for harassment and claim damages?

3.       What are the elements of the tort, and how does it apply to digital and workplace harassment?

Analysis

Recognition of the tort

The CFA unanimously confirmed that harassment exists as a common law tort in Hong Kong, evolving the law to address modern realities like digital harassment. To establish the tort, a claimant must prove: (1) a course of conduct that is repetitive, unreasonable, and oppressive; (2) the conduct amounts to harassment in the ordinary sense; (3) the harasser acted intentionally or recklessly as to causing harm; and (4) the victim suffered emotional distress, anxiety, or alarm (financial loss alone is insufficient). It emphasizes psychiatric harm as a core compensable damage, distinguishing it from mere economic torts. This framework draws from English precedents like Wilkinson v Downton [1897] 2 QB 57, which addressed intentional infliction of emotional harm through wilful acts, but adapts it for modern contexts without requiring physical manifestations of injury.

Limitations for corporate claimants

The CFA held that companies, lacking feelings or capacity for emotional distress, cannot sue for harassment or claim damages under this tort, either in their own right or representatively. This distinguishes it from economic torts focused on business harm. At its heart, the tort safeguards personal dignity and emotional tranquillity, positioning psychiatric injury as a form of personal injury compensable under common law principles. It distinguishes itself from economic torts by prioritizing mental suffering, and unlike negligence claims – which demand proof of a duty of care, breach, and foreseeability – harassment centres on deliberate or reckless behaviour leading to psychological harm. Victims can seek damages for conditions like depression, PTSD, or other psychiatric disorders if causally connected and substantiated by medical evidence, thereby broadening personal injury remedies beyond purely physical ailments.

Injunctive relief via employer duty

While corporations cannot sue for harassment due to their inability to suffer emotional harm, the CFA extended injunctive relief to employers to fulfil their non-delegable common law duty to provide a safe working environment, including protection from foreseeable psychiatric injuries. Extending the “Broadmoor” line of authority, the CFA ruled that employers can seek injunctions in their own name to restrain third-party conduct interfering with their duty to provide a safe working environment. This duty includes safeguarding against foreseeable psychiatric harm from harassment, applicable to physical workplaces, remote/hybrid setups, and digital platforms.

Outcome

The appeal was allowed in part. The tort of harassment was recognized for natural persons, but the Company could not claim damages. It was granted liberty to amend its pleadings to seek injunctive relief based on its employer duty, potentially restraining the Former Employee’s conduct towards the current employees.

Takeaway

This decision empowers individuals to pursue personal injury claims for emotional harm caused by harassment, providing a clearer pathway under common law. For employers, it underscores the importance of proactively addressing workplace harassment risks to avoid breaching duties, with injunctions as a tool to protect staff without needing employee-initiated actions. Documentation of risks and responses is crucial. As always, if in doubt, it is advisable to seek legal advice.