The concept of a duty of care continues to be a contentious legal test. The existence of a duty of care in the gambling sector is often presumed, wrongly, to apply in cases of problem gambling losses.
This is illustrated by a recent decision in the High Court of Australia.1 A similar finding was reached in Canada in Ross v British Columbia Lottery Corporation.2 In Ross, the Supreme Court of British Columbia determined that, while casinos may have a positive duty to seek help for problem gamblers3, there is no duty to “guarantee or ensure” that the plaintiff would cease gamblingaltogether. This case continues the debate on whether or not gambling providers can be held liable for excessive gambling by problem gamblers. Although Australian case law suggests there may be instances where a successful negligence claim can be brought, it is generally understood that no duty of care is owed to problem gamblers to prevent them from suffering gambling loss.
Duty of care
In tort law, a duty of care is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established in order to proceed with an action in negligence.
Currently, the ‘salient features’ approach is the test widely accepted in Australia for determining the existence of a duty of care. This adopts an incremental approach based on the relevant facts of individual cases.4As it stands, the salient features test includes, but is not limited to:
- the foreseeability and nature of harm;
- the control and assumption of responsibility;
- vulnerability and reliance; and
- the physical, temporal and relational proximity of both parties.5
The issue for consideration by the Canadian Courts in Ross was whether the relevant gambling operators, being British Columbia Lottery Corporation (‘BCLC’) and local casinos, were liable to problem gamblers who, after enrolling in a voluntary self-exclusion program, nevertheless continued to gamble. The Plaintiff, Joyce Ross, a problem gambler, enrolled in the BCLC Voluntary Self-Exclusion Program in 2007 for a three-year period, but proceeded to breach the terms of that Self-Exclusion Program by entering casinos during that period. The Court rejected the Plaintiff’s claims.
The Court reasoned that:
- The BCLC and the two casino defendants had acted appropriately and in accordance with the applicable standard of care in their implementation of the BCLC Voluntary Self-Exclusion program.
- The “person enrolling in the program has to retain the primary obligation to control their gambling or cease it all together.” The Court found the primary responsibility to remain out of the casinos rested with Ms Ross, not the defendants. Moreover, the Court found that the Plaintiff was the “author of her own misfortune” because, during her period of self- exclusion, she took steps deliberately to avoid being identified by casinos.
- The policies and practices in place, and the comprehensive surveillance and security systems employed by the defendants were found to be appropriate and reasonable6, and were applied non- negligently in the case of the Plaintiff.
The Court found that a narrow duty of care exists, but held that the duty is limited to implementing a voluntary self-exclusion program that requires casinos to exercise due diligence to prevent and not permit knowingly any person who has been barred from the casino to enter. However, the Court considered that the duty to cease gambling remained with the individual gambler, not the gambling operator.
Australian Case Law
Australian case law has rejected on various occasions the notion that gambling operators owe a duty of care. In Reynolds v Katoomba RSL All Services Club Ltd7 ('Reynolds'), it was recognised that problem gamblers cannot recover economic losses suffered from gambling. In Reynolds, the plaintiff brought a claim against the Katoomba RSL Club to recover substantial losses incurred while gambling on poker machines on the Club's premises.
Spigelman CJ found that, unless “extraordinary”8 circumstances arise, “economic loss occasioned by gambling should not be accepted to be a form of loss for which the law permits recovery."9Further, he stated that a duty of care to a gambler should only be held to exist after careful consideration as “loss of money by way of gambling is an inherent risk in the activity and cannot be avoided.”10His Honour concluded that the facts before the Court in Reynolds indicated that it was an ordinary case where the duty of care should not be recognised as the loss occurred following a "deliberate and voluntary act on the part of the person to be protected." However, it was held that whether a duty of care exists turns on the “whole of the circumstances”.11 This leaves open the possibility that a claim of negligence in an “extraordinary” case may be successful.
Foroughi v Star City Pty Limited12 ('Foroughi') followed the reasoning of Reynolds. Sydney’s Star City Casino was found to not owe Mr Foroughi (a gambler) a duty of care to prevent self-inflicted economic loss from gambling, as he independently breached his voluntary exclusion order. Jacobson J held that the duty of care argument in Foroughi was weaker than that argued in Reynolds, as Mr Foroughi "voluntarily undertook responsibility for hisown conduct in agreeing not to enter… Star City and to seek assistance and guidance of a qualified and recognized counselor."
The High Court decision in Kakavas related to a claim brought by a gambler to recover gambling loses from Crown Casinos. Harry Kakavas, a ‘high roller’ gambler, sought to recover monies in excess of $20 million that had been spent gambling at Melbourne’s Crown Casino between 2004 and 2006.
Kakavas claimed that Crown Casino had engaged in ‘unconscionable conduct’.13He argued that Crown Casino incentivised his gambling by providing the use of a jet,
various gifts, and a line of credit.
gambling could be classified as an ‘impairment’ that ‘could be classified as a special disability for the purposes of the doctrine of unconscionable dealing’.14The subsequent judgment of the High Court in Kakavas does not change the possibility that a particular set of circumstances can still give rise to a successful claim of a duty of care.
What may amount to an "extraordinary" set of circumstances that permit recovery of economic loss via gambling, remains to be seen in Australian law. The case of Ross followed the same line of reasoning as the current Australian case law, being that the duty to cease gambling activity still resides with the individual, as opposed to the gambling provider. Whether a duty of care will eventually be imposed on gambling providers to monitor and stop excessive gambling by problem gamblers remains to be seen.
If you have any questions in relation to the above, please feel free to contact any member of Addisons’ Media and Gambling team.
The Court made a variety of general observations in its overview of Kakavas’ claim but concluded that this was a case based on ‘unconscionable conduct’, meaning that a duty of care for gambling, which has previously been deliberated, may still be possible. Moreover the decision in Kakavas does not rule out the possibility of unconscionable dealing being successfully argued in other cases involving problem gamblers. One suspects the likelihood of success will be increased by the presence of a more conventionally disadvantaged victim, whose vulnerability should be obvious to the gaming venue. In the Supreme Court, Harper J posited that problem