2. Mr. Michael Stephens
Self-Exclusion, Responsible Gambling and the Courts:
A Discussion of Self-Exclusion and Prior Judicial Decisions
Concerning Casino Gaming.
Ms. Constance Ladell
Moderator

3. Self Exclusion, Responsible Gambling And The
Courts: A Discussion of Self-Exclusion and Prior
Judicial Decisions
Concerning Casino Gaming
January 2013
K. Michael Stephens and
Kimberley Knapp
Hunter Litigation Chambers
Law Corporation

4. Overview

5. Overview: Part I
• Around the world, casino operators
have been the subject of legal
proceedings in connection with
gambling activity (both within the
self-exclusion context and beyond)

6. Overview: Part II
• Survey existing body of case law from
those jurisdictions (Australia, Great
Britain, the U.S., and Canada), and
highlight key aspects of those cases

7. Australia

8. Australia
• Courts in Australia have generally
found that casino operators owe no
duty of care to protect problem
gamblers against economic losses

9. Reynolds v. Katoomba RSL All Services
Club Limited, [2001] NSWCA 234
In rejecting Mr. Reynolds’ claim and dismissing his
appeal, Chief Justice Spigelman stated:
“…Save in an extraordinary case, economic loss occasioned
by gambling should not be accepted to be a form of loss for
which the law permits recovery. I make allowances for an
extraordinary case, without at the present time being able
to conceive of any such case…”

10. Foroughi v. Star City Pty Limited,
[2007] FCA 1503
• Dismissed claim by plaintiff for economic losses arising after
he had self-excluded from casino
• Self-exclusion form contained a provision by which plaintiff
acknowledged that it was his responsibility not to enter or
gamble within the casino
• Court held that there was nothing in the Casino Control Act to
support a private right of action additional to the obligations
imposed upon casino operators
• The Court also rejected the claims of misleading or deceptive
and unconscionable conduct under the Trade Practices Act

11. Kakavas v Crown Limited & Anor,
[2007] VSC 526
• Gambler sought in damages from Casino
claiming unconscionable conduct, deceptive
and misleading conduct, negligence and
restitution
• Several of plaintiff’s claims did not survive
motion to strike

12. Kakavas v Crown Melbourne Limited &
Ors, [2009] VSC 559
• Court dismissed Mr. Kakavas’ claim
• Decision was affirmed on appeal, but leave
has been granted for further appeal to the
High Court of Australia

13. Great Britain

14. Great Britain
• Great Britain has produced a leading
decision in the area of self-exclusion
litigation

15. Calvert v. William Hill Credit Ltd.
[2008] EWHC 454 (Ch Div); affirmed on appeal
[2009] 2 W.L.R. 1065 (CA)
Justice Briggs began by noting that it was the first
time an English court had been required to
consider the question:
“...whether a bookmaker who has, at the customer's
request, undertaken to prohibit the customer from
gambling for a specified period, owes the customer a duty
to take reasonable care to enforce that prohibition, so as
to protect the problem gambler from the risk of gambling
losses during the specified period”

16. Calvert (continued)
• At trial, plaintiff was found to be a pathological
gambler
• Justice Briggs rejected the existence of a broad duty
of care to problem gamblers generally
• Justice Briggs accepted a duty of care to enforce the
prohibition on gambling that it had given at
plaintiff’s request
• Nevertheless, he dismissed the action on the ground
that the breach did not cause plaintiff’s financial
losses

17. Calvert (continued)
• Justice Briggs was satisfied that Plaintiff’s gambling
disorder was so compulsive, and that the other
gambling opportunities available to him were so
extensive, that defendant’s negligence contributed
to his losses only by accelerating what would
probably have occurred in any event
• The decision of Justice Briggs was affirmed on
appeal solely on the basis of lack of causation

18. The United States

19. The United States
• New Jersey and Indiana have been a
source of litigation involving self-excluded
and compulsive gamblers

20. I/M/O Petition of S.D. for Removal from the
Voluntary Self-Exclusion List, 943 A.2d 188
(N.J.Super.A.D. 2008), 399 N.J. Super. 107,
2008 N.J. Super. LEXIS 65
• A gambler who had placed himself on the
Casino Control Commission’s lifetime self-
exclusion list petitioned to have himself
removed from the list after he had learned
that out-of-state casinos affiliated with the
state casinos would also exclude him from
their gaming facilities

21. I/M/O Petition of S.D. for Removal from the
Voluntary Self-Exclusion List (continued)
The Court upheld the Commission’s decision to
deny the gambler’s petition for removal, finding
ample basis for the decision in fact, law and public
policy. In doing so, the Court noted:
In essence, self-exclusion is designed as a means to help
problem gamblers help themselves; it places responsibility
squarely on self-excluded persons themselves to refrain
from prohibited activities, albeit with the assistance and
cooperation of the casinos. …

22. Taveras v. Resorts International Hotel,
Inc., et al, 2008 U.S. Dist. LEXIS 71670
• Plaintiff brought an action against six New Jersey casinos
alleging, among other things, that the casinos had breached
their duty of care and contractual obligations to her, that they
were strictly liable in respect of the “abnormally dangerous
activity” of gambling, and that they had intentionally inflicted
emotional distress - after having received notice that she was
a compulsive gambler
• Court dismissed the action
• The Court declined to find any outrageous or extreme
conduct necessary for the intentional infliction claim

23. Merrill v. Trump Indiana, Inc.,
320 F.3d 729 (7th Cir. 2003)
• A compulsive gambler, alleged that the riverboat casino failed to prevent
him from gambling after he had asked to be evicted from the casino if he
entered
• Federal Court of Appeals held that there was no statutory or common law
duty of care
• The Court concluded that neither the Indiana gaming statute, nor
regulations, imposed a duty upon the casino to eject a gambler who
requested to be placed on the casino’s eviction list – at most, it imposed a
duty upon the casino operator to the State through the Indiana Gaming
Commission – not to the individual gambler

24. Stulajter v Harrah’s Indiana Corp.,
808 N.E.2d 746 (Ind.App. 2004)
• Self-exclusion context
• Court finds gaming statutes and regulations
did not create a private cause of action
against casino operator

25. Ceasars Riverboat Casino, LLC v Kephart,
903 N.E. 2d 117 (Ind.App. 2009),
2009 Ind. App. LEXIS 514
• Casino brought an action against a
compulsive gambler after her cheques
were not honoured; the gambler
counterclaimed alleging that the casino
took advantage of her known pathological
gambling condition to unjustly enrich itself
• The trial court denied the casino’s motion
to dismiss the counterclaim

26. Ceasars Riverboat Casino, LLC v Kephart,943
N.E.2d 1120 (Ind. 2010), 2010 Ind. LEXIS 560
• On appeal to the Supreme Court of Indiana, the majority of
the court found it unnecessary to decide whether casino
operators had a common law duty to refrain from attempting
to entice or contact gamblers that it knew or should have
known were compulsive gamblers, holding instead that the
legislature had by implication abrogated any common law
claim that casino patrons might otherwise have against
casinos for damages resulting from enticing patrons to
gamble and lose money at casino establishments

27. Ceasars (continued)
• “In this case, not only does the statutory scheme
cover the entire subject of riverboat gambling, but
the statutory scheme and Kephart’s common law
claim are so incompatible that they cannot both
occupy the same space. …”
• “The legislature did not require casinos to identify
and refuse service to pathological gamblers who
did not self-identify. Kephart’s claim directly
conflicts with the legislature’s choice.”

28. Canada

29. Canada
• Legal landscape in Canada is still in
development
• A number of cases involving self-excluded
gamblers are working their way through the
Canadian courts
• To date, to our knowledge there has been no
decision on the full merits of a claim by a self-
excluded gambler, although some preliminary
decisions have been issued

30. Edmonds v Laplante,
[2005] OJ No 6454 (SCJ)
• Not directly involving self-exclusion or
compulsive gambling litigation
• Plaintiff alleged, and the Court accepted,
that the Gaming Corporation owed him a
duty of care to implement non-negligently
the policy that it had undertaken in respect
of “insider-win investigations”

31. Dennis v Ontario Lottery and Gaming
Corporation, 2010 ONSC 1332, 101 OR (3d) 23,
aff’d 2011 ONSC 7024, 344 DLR (4th) 65 (Div Ct)
• Self-exclusion case
• Court considered a motion for certification in
proposed class proceedings in Ontario
• The claim alleged negligence, occupiers’ liability
and breach of contract, and sought damages or
disgorgement of profits derived by OLGC from
class members

32. Dennis (continued)
• Justice Cullity’s discussion of the plaintiff’s claims
involves a preliminary assessment of whether a
cause of action has been pleaded. It is not a
consideration or determination on the merits of the
case
• On the negligence claim, Justice Cullity held that the
plaintiff should be permitted to have the duty of care
tried on the basis of evidence without being “driven
from the judgment seat” at the preliminary stage

33. Dennis (continued)
• Justice Cullity allowed the claim in occupier’s
liability to stand until a trial on the basis of the
sufficiency of the pleadings
• The decision of Justice Cullity denying
certification affirmed on appeal to the
Divisional Court, but leave for further appeal to
the Ontario Court of Appeal has been granted

34. Haghdust v British Columbia Lottery
Corporation, 2013 BCSC 16
• Jackpot entitlement rule self-exclusion
program
• Plaintiffs applied to have their actions
consolidated and certified as a class
proceeding
• The certification was granted by BC
Supreme Court

35. Burrell v Metropolitan Entertainment
Group, 2010 NSSC 476,
aff’d 2011 NSCA 108
Court summarily dismissed the plaintiff’s
action against the Nova Scotia Gaming
Corporation, the Attorney General and the
casino operator, alleging a duty of care to
ensure appropriate steps were taken to
prevent plaintiff’s gambling

36. Burrell (continued)
In declining to find a duty of care under
common law, the Court noted the absence
of cases in Canada and the rejection of
such a broad duty in Australia, the United
Kingdom, and the United States

37. Burrell (continued)
The decision was upheld on appeal to the
Nova Scotia Court of Appeal:
“Mr. Burrell’s losses precede his request for exclusion and the
prohibition notice under the Protection of Property Act. His
claim asserts the existence of the broad duty of care that was
rejected in Calvert, was not considered in Dennis, and is
unsupported by the Australian and American cases. Mr. Burrell
cites no authority that has accepted a duty of care to problem
gamblers who have neither self-excluded nor been lured by
individually targeted promotion.”

38. • Other cases before courts

39. HUNTER LITIGATION CHAMBERS
Law Corporation
Suite 2100
1040 West Georgia Street
Vancouver, British Columbia V6E 4H1
Phone: 604-891-2400
Fax: 604-647-4554
Website: http://www.litigationchambers.com

40. We’re on Twitter @HorizonsRG
Join the conversation by using
#HRGC13