Hong Kong courtroom extends the scope of jurisdictional gateway for tort dedicated abroad

The evolution of Vicarious Liability for intentional torts - Lexology

For the first time, the Hong Kong Court of First Instance dealt with the case law of the UK Supreme Court in Brownlie v Four Seasons Holdings Inc. [2018] 1 WLR 192 on the concept of “damage” in the gateway provision to appeal to the longstanding jurisdiction of the local court for unlawful acts outside of jurisdiction.

In Fong Chak Kwan against Ascentic Ltd & Ors [2020] HKCFI 679, the plaintiff (“P.”) An employee who is a permanent resident of Hong Kong suffered multiple injuries as a result of an accident at a sewage treatment plant in Ningbo City, mainland China, where he was a construction site specialist at the relevant times for the employment of the 2nd defendant (“D2”), A United States registered company.

The application was made by the Employees Compensation Assistance Fund Board, a statutory fund that monitors cases of uninsured occupational accidents and the 3rd D in between

efendant (“D3”) For an order to dismiss the lawsuit on the grounds, among other things, that the Hong Kong court does not have jurisdiction to maintain the lawsuit by granting permission to serve Hong Kong lawsuits in the United States.

It was not denied that P suffered direct harm (ie, immediate bodily harm) as a result of the accident at the mainland China factory. He received medical treatment, suffered from pain, suffering and loss of convenience (PSLA), and suffered medical issues in spending in Hong Kong.

One of the main legal questions in the present case was whether P was entitled to issue and serve the summons to D2 in the US on the basis that “the damage … within the jurisdiction” according to Part Two of Order 11 suffered Rule 1 (1) (f) of the Hong Kong Rules of the High Court (“Gateway F.”), Which is similar to its counterpart in the English Code of Civil Procedure.

This case is significant as it is the first time a Hong Kong court has examined the case law contained in the landmark decision of the United Kingdom Supreme Court in Brownlie v Four Seasons Holdings Inc. [2018] 1 WLR 192 when interpreting the word “damage” within Gateway F in relation to the jurisdiction of the local court.

Relying on the majority view in Brownlie, P argued that the words “harm … suffered within the jurisdiction” should have their ordinary and natural meanings and are therefore broad enough to cover all types of direct or indirect harm suffered by P. Result of the illegal behavior of D2. Thus, the fact that P suffered pain, suffering, and loss of convenience, received medical treatment, and incurred medical expenses in Hong Kong per se would be sufficient to rely on the longstanding jurisdiction of the Hong Kong court to service the letter the USA via Gateway F.

D3 relied on Brownlie’s minority view (specifically Lord Sumption’s judgment) and argued that the meaning of “harm” was limited to bodily harm suffered by P immediately after the accident at the mainland China factory. D3 considered the indirect damage as mere evidence of the financial value of the direct damage. The difference between direct and indirect damage arises from the distinction between damage caused to a legally protected interest and facts that merely demonstrate the financial value of that damage. Tort law in general deals with non-financial interests, including physical integrity, physical property and reputation. If these interests are intentionally or negligently violated, the unlawful act has been completed at the time of the violation.

The Hong Kong Court of First Instance followed the majority opinion in Brownlie. It is noted that the majority view provided a clear and compelling answer to Lord Sumption’s minority distinction between “damage” and evidence of the financial valuation of such damage for three reasons. First, Lord Sumption’s distinction equates “harm” with “harm that completes the cause of the act,” but “harm” is not an integral part of any illicit act. Second, even Lord Sumption himself, by limiting “harm” to “harm to the protected interest”, recognized the conceptual difficulty in which the relevant interest can be located and damaged in more than one country. Finally, the Court ruled that at the time Gateway F was drafted, the legislature had likely considered the common and natural meaning of the word “harm”.

In following Brownlie’s majority argument, the Court also dismissed concerns that a broad interpretation of “harm” under Gateway F would create “universal jurisdiction” to sustain local residents’ personal injury claims anywhere in the world were suffered, as would still be the case, should be duly taken into account at the discretion of the Forum Conveniens.

As a result of this judgment, Gateway F is given a liberal interpretation by allowing a person against whom a tort has been committed abroad to sue in Hong Kong, provided that they suffer consequential damage and loss such as PSLA and medical treatment in Hong Kong Kong suffered after the accident.

Following D3’s subsequent motion, D3 was given permission to appeal this decision to the Hong Kong Court of Appeal, as the appeals courts were asked to further examine the views of the majority and minority in Brownlie.


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