Calvert v William Hill Credit Ltd - Limited Duty of Care Owed to Problem Gamblers

United Kingdom

This article was produced by Olswang LLP, which joined with CMS on 1 May 2017.

Gambling operators breathed a collective sigh of relief on 12 March 2008 when Mr Justice Briggs giving judgment in the High Court found that William Hill was not liable to Graham Calvert for approximately £2 million that Mr Calvert gambled and lost in the second half of 2006. The Judge found that William Hill owed Mr Calvert a limited duty of care and had breached that duty, but was not liable because Mr Calvert was a pathological gambler who would have suffered financial ruin anyway.

The Judge found that William Hill had assumed a duty of care to Mr Calvert by implementing a self-exclusion policy and, in response to Mr Calvert's request, telling him that he was excluded from telephone gambling for six months. The employee who spoke to Mr Calvert failed to properly explain what Mr Calvert needed to do to take advantage of William Hill’s policy, and did not take the required steps to notify effect the exclusion.

Most gambling companies now offer self-exclusion options and, following this decision, will be seen as having assumed a duty of care to problem gamblers who ask to be excluded from gambling. A carefully drafted and properly implemented exclusion policy will protect the company, but it is clear that problems may well arise when the policy is not properly prepared or implemented.

William Hill was, to an extent, saved by the Judge’s failure to believe Mr Calvert’s evidence and finding that Mr Calvert would have lost his money anyway. Another defendant may not be so fortunate. Gambling companies should see this judgment as a wake up call to review their self-exclusion policies and ensure that all staff are properly trained to implement them when a problem gambler is identified.

The judgment is of particular note for remote gambling operators as the Judge found that remote gambling can greatly increase the risk of a loss of control by a problem gambler because (1) handing over cash at a betting office helps maintain some sense of the financial consequences of gambling, whereas on the telephone does not and (2) remote gambling releases the gambler from the practical constraints of obtaining large amounts of cash.

Background

Graham Calvert had been a successful greyhound trainer for several years. By 2000, he had become a successful gambler, with winnings from 2000 until 2005 of about £50,000 per year. Initially his gambling was confined to greyhound racing, but as his ability to bet on the dogs was reduced he began betting on a wider range of events. He placed large bets through the remote gambling division of the William Hill organisation and in September 2006 he infamously lost over £347,000 betting that the USA would win the Ryder Cup.

In 2004 William Hill formulated a social responsibility policy which provided for the exclusion of a customer in various circumstances, including when a customer stated that he could not control his gambling or requested the closure of his account and that he be excluded from further gambling. William Hill’s policy required various internal procedures to be followed to ensure that the customer sign a liability disclaimer and was then excluded so far as practicable.

On 5 June 2006 Mr Calvert asked William Hill to exclude him from telephone gambling for six months. The team leader he spoke to assured him that he need not do anything further (contrary to William Hill's policy) and would be excluded from telephone gambling with William Hill for six months. The team leader did not take the necessary steps to implement an exclusion or require Mr Calvert to sign the disclaimer in accordance with William Hill's policy, and in six months from June 2006, Mr Calvert was allowed to continue gambling with William Hill and lost £2 million causing him financial ruin.

Mr Calvert issued proceedings claiming that William Hill had negligently failed to implement its own policy in breach of the duty of care it had assumed towards him. He contended that he had suffered economic loss of the money he had gambled and subsequently sought to amend his claim to seek damages for personal injury on the grounds that that his condition as a problem gambler had deteriorated.

The Judge’s decision

At the start of the trial, the Judge allowed Mr Calvert to amend his claim to include a personal injury claim. This opened the way for Mr Calvert to argue, on the basis that the deterioration in his gambling disorder was a contributory cause of his gambling losses, that his gambling losses were not pure economic loss, but financial loss consequential upon the suffering of personal injury (in this case psychiatric injury).

Mr Justice Briggs noted that although there is no general duty to prevent someone from harming himself, exceptional circumstances can give rise to a duty to prevent or mitigate the consequences or aggravation of self-inflicted harm. Such circumstances include the assumption of control over someone while vulnerable to the consequences of self-inflicted harm, or the assumption of some responsibility for the care of, or the provision of assistance to, such a person.

The Judge found that Mr Calvert became a problem gambler by the beginning of 2006, a pathological gambler by May 2006 and that during the last quarter of 2006 Mr Calvert had become a severe pathological gambler who had lost control of his gambling, rather than merely suffering an impairment of his control.

Although William Hill had not voluntarily assumed responsibility to the broad class of problem gamblers as a whole by its adoption of its social responsibility policy, it did assume responsibility to Mr Calvert when he, a problem gambler, requested that he be excluded from gambling and William Hill’s employee agreed.

The request and the response was crucial as it brought the parties into a degree of relationship akin to that of contract and it prevented the objection that the provision of assistance may infringe the gambler’s autonomy, since he himself specifically requested it. William Hill assumed a duty to prevent Mr Calvert from gambling with them for six months, as it said it would do.

This duty was breached when William Hill's employee failed to pass on Calvert's self-exclusion request and no steps were taken to implement the request.

Despite the breach of duty, the Judge found that William Hill did not cause Mr Calvert to suffer any loss. The Judge found as a matter of fact that even if Mr Calvert had been excluded from telephone betting by William Hill in the second half of 2006, as a pathological gambler he would have found other avenues for large scale betting, whether on the telephone or on the internet, and would have continued his gambling and suffered financial ruin, even if this was a slower process.

The Judge considered that it would be a travesty of justice if a problem gambler could attribute liability for his financial ruin to a particular bookmaker due to their failure to exclude him at his request, if he would have ruined himself anyway by betting with one or more of that bookmaker’s competitors.

Mr Calvert's case therefore failed as William Hill’s negligence contributed to his financial ruin only by accelerating what would probably have occurred in any event: William Hill’s conduct did not in any definable way increase the aggregate amount of harm suffered.