Does the ‘new’ cause of action for general harassment open Pandora’s Box?

Feb242015

The judgment in the case of Lau Tat Wai v Yip Lai Kuen, Joey handed down on 24 April 2013 appears to be a watershed in the development of a general law of harassment.

New development

Prior to this judgment there had been no authoritative decision in Hong Kong confirming the existence of a right to sue for a tort (i.e. a civil wrong) of general ‘harassment’. Previously harassment claims have existed only in specific circumstances arising under specific statutory restrictions, in particular, sexual harassment (Sex Discrimination Ordinance (Cap 480)), racial harassment (Race Discrimination Ordinance (Cap 602)) for example. This new common law development creates a general and very wide basis for legal action based on harassment generally and may lead to a flood of new litigation and cases relying upon this authority. They may arise in the areas of employment law but also in many other legal areas dealing with commercial and personal interaction such as neighbour disputes, landlord and tenant and matrimonial/family disputes.

How did the ‘new’ law arise

It is an old adage that “hard cases can make bad law“. The facts of Lau Tat Wai v Yip Lai Kuen, Joey were certainly extreme, leading to the court’s decision in this case.

The Plaintiff, Mr Lau ended a brief but intimate relationship with Ms Yip. She then subjected him and his family to what can only be described as an intense and extreme series of malicious acts intended to harass, intimidate and generally damage his life, well-being and career, over a period of 6 years. For their own protection Mr Lau and his family moved house, gave up jobs and maintained a distance from friends.

The scope of the new law

The judge considered authorities which had addressed the potential existence of a general tort of harassment as well as some existing alternative causes of action such as intimidation and trespass to goods/person. The Judge found that there was and should be a general tort and cause of action for harassment and set out to describe the ingredients necessary to establish a case of harassment as follows:-

Harassment means:-

…I shall take the term harassment to mean a course of conduct by a person whether by words or action, directly or through third parties, sufficiently repetitive in nature as would cause, and which he ought reasonably to know would cause worry, emotional distress or annoyance to another person. This is not intended to be an exhaustive definition of the term but rather one that sufficiently encompasses the facts of the present case in order to proceed with a consideration of the law“.

However it need be remembered that the development of the common law is slow and incremental based on the facts before the court.

There needs to be a mental requirement of the wrongdoer/harasser as well as damage to the victim in order to constitute the tort of harassment. The victim does not need to show an intention on the part of the wrongdoer to cause injury to the victim but does need to show recklessness as to whether the victim might suffer injury from the wrongdoer’s act. This lower threshold is justified when physical or mental harm are likely to be involved.

There needs to be injury or damage. In the tort of harassment this can involve physical injury and at the other end of the scale, mere humiliation. Different people can react differently to the same act of harassment. However a wrongdoer must take his victim as he finds him. In that respect an act which causes anxiety on the part of the victim and which has been caused by the harassment of the wrongdoer would satisfy the threshold of injury or damage. Clearly any direct financial loss such as the costs of moving house would also satisfy the requirement of damage in establishing the cause of action.

Conclusion

The establishment of a general tort of harassment and the wide definition of what may constitute damage make this new development one with broad application and potentially wide implications.

Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.