| NEGLIGENCE — Duty of care to whom? — Bookmaker — Gambling losses of customer known by bookmaker to be problem gambler — Whether bookmaker owing duty of care to customer
Calvert v William Hill Credit Ltd [2008] EWHC 454 (Ch); [2008] WLR (D) 87
Ch D: Briggs J: 12 March 2008
Although a bookmaker was not liable in negligence in respect of the gambling losses of a customer who was, and who was known by the bookmaker to be, a problem gambler, a bookmaker who had, at the customer’s request, undertaken to prohibit the customer from gambling for a specified period owed the customer a duty to take reasonable care to enforce that prohibition, so as to protect the customer from the risk of gambling losses during the specified period.
Briggs J, sitting in the Chancery Division, so held when dismissing the claim for damages brought by the claimant, Graham Calvert, against the defendant, William Hill Credit Ltd.
BRIGGS J said that the late amendment to plead that the defendant’s conduct caused or aggravated the claimant’s condition as a pathological gambler required the duty of care issue to be addressed not merely in relation to the pure economic loss constituted mainly by gambling losses, but also in relation to personal injury. The claimant put his case for the existence of a relevant duty of care in two ways, one broad and one much narrower. Taking the broad route first, he submitted that the common law should now recognise a duty of care on the part of a bookmaker to any customer appearing to be a problem gambler, first to take reasonable steps to offer assistance, including but not limited to a self-exclusion arrangement, and second to avoid unconsciously exploiting the customer’s vulnerability by permitting that customer to continue gambling. Applying the test in Customs and Excise Comrs v Barclays Bank plc [2007] 1 AC 181, he submitted that the defendant had made a sufficient voluntary assumption of responsibility by the establishment and publication of its own social responsibility policy with associated self-exclusion procedures, the mention of them in its rules of gambling, and by its internal procedures for identifying problem gamblers. The narrower submission focused for the necessary assumption of responsibility upon the contents of a telephone conversation between the claimant and the defendant which concluded with the assurance that for the next six months the claimant would not be allowed to open an account and bet over the telephone with the defendant. His Lordship was not persuaded by the claimant’s broader submission that by developing its own social responsibility policy and procedures the defendant could be said voluntarily to have assumed responsibility to all its problem gambler customers, in the sense of assuming responsibility to take care, with a concomitant liability to compensate customers injured in their mind or in their pocket by any failure to take care. Turning to the claimant’s narrower submission, he presented himself as a problem gambler in need of help, asked for specific help, and was assured that he would be given it. Those facts disclosed a sufficient voluntary assumption of responsibility by the defendant to exclude the claimant from telephone gambling with the company for six months to give rise to a duty to take care to implement that exclusion. Faced with a request for help from a person of some vulnerability, the defendant chose to undertake to do that which was requested, without any disclaimer of legal responsibility. However, the claimant’s case failed upon the ground that the defendant’s negligence merely affected the manner in which, and in particular the rate at which, a pre-existing pathological gambling disorder caused the financial and social ruin and the psychological harm which formed the basis of his claim, without in any definable way increasing the aggregate amount of either form of harm. |
