Graham Calvert was a compulsive gambler. His gambling was originally limited to greyhounds (he was a greyhound trainer by profession) but in around 2005 his habit extended to other sports. By May 2006, when he started telephone betting with William Hill, his gambling had become ‘pathological’ but was punctuated by ‘periods of calmer lucidity’ during which he realised that his addiction was uncontrolled and potentially destructive.
In the summer of 2006 the Gambling Act 2005 had been enacted but had not yet come into force. This Act would substantially amend the law relating to gambling, most significantly by providing that gambling contracts would now be legally enforceable, albeit under a system of regulation. Part of the new regulatory framework would address the problem of compulsive gamblers and, against this background, several bookmakers, including William Hill, had voluntarily adopted codes of practice. Under these codes, some bookmakers offered the possibility of ‘self-exclusion agreements’ for gamblers who used telephone betting facilities. These would typically take the form of a request by the gambler to close their account, and an agreement by the bookmaker to do so and not to reopen the account for a period of six months.
On 5 June 2006, Calvert embarked on what the judge described as ‘a betting frenzy’. That night, realising what he had done, he contacted William Hill and asked them to close his account. He spoke to an employee called John, who agreed to close his account and not to permit him to reopen it, under any circumstances, for a period of six months. However, John failed to follow the proper procedures. As a consequence, Calvert’s account was not closed and he was not prevented from further telephone betting. The results were catastrophic. Between August and the beginning of December 2006, Calvert gambled and lost in the region of £2m.
Calvert subsequently brought a claim against William Hill for damages arising from these gambling losses. He claimed that they were the result of a breach of duty by William Hill in allowing him to continue to operate accounts with them after he had sought a self-exclusion agreement.
At first instance, Briggs J found that William Hill had assumed a responsibility to Calvert by agreeing to implement a self-exclusion agreement in the conversation of 5 June 2006 and had breached that duty by then failing to act in accordance with the agreement. However, the judge concluded that this breach had not caused Calvert’s loss. He held that causation was ultimately a matter of common sense and that the Court had to consider what Calvert would have done had he been successfully excluded from William Hill. On the evidence, the judge was satisfied that the most likely consequence of Calvert’s exclusion from William Hill was that he would have continued gambling at other bookmakers and would have caused himself similar financial ruin, albeit at a slower pace.
The Court of Appeal upheld the decision of Briggs J. It found that the key question when considering causation of loss in a negligence action was whether the duty of care owed to the claimant was ‘such as to embrace the damage of the kind which the claimant claims to have suffered’. In the present case, William Hill had assumed a duty not to allow Calvert to place telephone bets with them. They had not assumed a duty of care to prevent Calvert from gambling generally. In particular, they had not assumed responsibility to prevent him from gambling in other ways – such as in betting shops or over the internet – nor with other bookmakers. The Court concluded that in quantifying the losses he had suffered, Calvert could not simply ignore the other gambling losses that he would have sustained had he been successfully excluded from William Hill.
There are several interesting features in this decision. First, it serves as a reminder that where a party voluntarily assumes a duty of care to another, that duty may well be legally enforceable, even if (as in the present case) the duty is to protect that person from themselves. Secondly, the decision confirms that causation is a matter of common sense and factual enquiry, as well as legal principle. It highlights the link between the scope of a duty owed and the damages that are recoverable for a breach of that duty. It also underlines the necessity for parties to consider in detail what would have happened but for the breach of duty complained of. If the same losses would have been incurred anyway, then they cannot be said to have been caused by the breach. Having looked at the evidence, the Court decided that this was the position in Calvert’s case. William Hill’s actions may have affected the manner and speed with which he caused himself financial ruin but they did not change the end result.
By Daniel Silver, associate, commercial litigation department, SJ Berwin LLP.E-mail: firstname.lastname@example.org.