HONG KONG SAR, CHINA Law and Practice Contributed by: Gordon Chan
Breach of Contract Claims in contract law apply where there is a direct agreement between the consumer and the seller or supplier. A plaintiff may sue for breach of expressed or implied contractual terms. The Sale of Goods Ordi - nance (Cap 26) implies certain consumer protection terms in contracts, such as requirements that goods match their description, are of satisfactory quality, and are fit for their intended purpose. The consumer can claim damages if these expectations are not met and the defect leads to loss or injury. This is the main cause of action for direct purchasers, as it is not fault- based but requires a contractual relationship. Tort of Negligence The tort of negligence provides the main route for claims against manufacturers, importers, distributors, or suppliers, even those that typically have no direct contract with the ultimate consumer. To succeed, the plaintiff must prove that the defendant: • owed the plaintiff a duty of care; • breached that duty by falling below the expected standard (eg, through poor design, manufacturing errors, or inadequate warnings); and that • this breach had caused foreseeable harm or dam - age. Courts assess liability objectively based on what a reasonable person in the defendant’s position would have done. This fault-based approach extends pro - tection to end-users, bystanders and others affected by the product. Breach of Statutory Duty Generally, the breach of statutory duty does not give rise to a distinct civil cause of action. However, when specific statutory duty has been breached, it is strong evidence to support a claim. Especially when the par - ties concerned have been convicted of the relevant offences. Examples of such statutes include the Consumer Goods Safety Ordinance (Cap 456), which requires manufacturers, importers and suppliers to ensure consumer goods are reasonably safe, or the Electrical Products (Safety) Regulation (Cap 406G) for relevant electronic items. Other sector-specific rules cover
food, toys, or dangerous goods. While these primarily create criminal offences, they can serve as important information in civil claims by setting the standards of expected level of safety or care. 2.2 Standing to Bring Product Liability Claims In Hong Kong, only parties with proper standing can bring product liability claims which differs between the cause of action in contract and tort. Claims in Contract Under the privity of contract, only parties with a direct contractual relationship, typically the buyer and the seller, have standing to bring breach of contract claims. This route suits situations where the purchas - er suffers loss because the product does not meet the implied terms on quality, description, or fitness for purpose. Third parties outside the contract, such as family members or bystanders, generally do not have standing unless this is expressly provided or the contract purports to benefit them. This is through the operation of the Contracts (Rights of Third Parties) Ordinance (Cap 323). Claims in Tort of Negligence The tort of negligence offers the broadest standing beyond a contractual relationship. Any person who suffers foreseeable harm or damage from a defective product can bring a claim against the manufacturer, importer, distributor, or supplier. This includes not only the buyer but also end-users, family members, guests, or even bystanders injured by the product. Other Considerations Executors or administrators can bring claims on behalf of a deceased person whose death resulted from a defective product. Parties that suffer pure economic loss in tort may face stricter hurdles, as courts are cautious about allowing such claims without physical damage or personal injury. Mentally incapacitated persons, as well as minors, can also sue with the assistance of a “next friend” or a guardian ad litem. 2.3 Time Limits for Product Liability Claims Hong Kong law sets clear statutory deadlines for start - ing product liability civil claims to ensure fairness and
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