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Touchline • Issue 16 • 25
him of his gambling problem. A psychologist’s report was
subsequently obtained and Mr Kakavas was welcomed back to
the high rollers section of the casino where he was promised
various privileges, such as the use of Crown Casino’s private
jet, in exchange for gambling at the casino. Over the course
of 14 months, Mr Kakavas sustained losses of $20.5 million.
He subsequently brought a claim against the casino seeking
to recover his losses, alleging that the casino had engaged in
unconscionable conduct in allowing Mr Kakavas to gamble.
Mr Kakavas attempted to argue that the casino exploited his
inability to make worthwhile decisions in his own interests as
a result of his pathological urge to gamble. In order to succeed
with the argument, Mr Kakavas was required to establish that
the whole course of dealing between the parties was such that
the responsibility for Mr Kakavas’ loss should be ascribed to the
unconscionable conduct of the defendant.
Firstly, the court considered whether Mr Kakavas was unable to
make worthwhile decisions in his own interests. The medical
evidence was such that Mr Kakavas’ pathological urge to gamble
was not continuous and did not prevent him from choosing
to stay away from the gambling tables, something he had
demonstrated he was able to do in the past by the numerous
self-exclusion orders that he had imposed upon himself. He
had also stayed at the casino on occasion without gambling
and had demonstrated on numerous occasions during the 14
month period that he was able to stay away from the casino for
several months at a time when it suited him to do so. The court
considered that it was Mr Kakavas’ choice to put himself in the
position where he might lose money at Crown’s tables, and, had
he not been gambling at Crown, he would have been gambling
somewhere else. Crown was merely competing for his business,
which they were entitled to do.