Vasilios Dalamangas v Star City Pty Ltd

[2004] NSWSC 717

CITATION:	VASILIOS DALAMANGAS & ORS v STAR CITY PTY LTD & ANOR [2004] NSWSC 717
HEARING DATE(S):	4 August 2004
JUDGMENT DATE:	10 August 2004
JURISDICTION:	Common Law Division
JUDGMENT OF:	Bergin J
DECISION:	Application dismissed with costs
CATCHWORDS:	[PRACTICE AND PROCEDURE] - Application for summary dismissal pursuant to Part 13 Rule 5 of the Supreme Court Rules 1970 - [STATUTORY CONSTRUCTION] - Whether the Casino Control Act 1992 (NSW) reveals an intention to exclude the common law in relation to the exercise of the powers of the Casino Control Authority - Whether the Casino Control Authority owes a duty of care to patrons of the casino who are the subject of physical restraint by casino employees in circumstances where the type of restraint used is authorised by the Authority pursuant to the Act - Whether the Authority has a statutory obligation to investigate the Casino including its "operations" which include the security system in which the restraints are used
LEGISLATION CITED:	Casino Control Act 1992 (NSW) Compensation to Relatives Act 1897 (NSW) Occupational Health and Safety Act 2000 (NSW) Supreme Court Rules 1970 (NSW)
CASES CITED:	Amaca Pty Ltd v State of New South Wales [2004] NSWCA 124 Brodie v Singleton Shire Council; Ghanthous v Hawkesbury Shire Council (2001) 206 CLR 512 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 General Steel Industries Inc v Commissioner for Railways & Ors (NSW) (1964) 112 CLR 125 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Pyrenees Shire Council v Day (1998) 192 CLR 330 Sullivan v Moody; Thompson v Connon (2001) 207 CLR 562 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Webster v Lampard (1993) 177 CLR 598 Wickstead v Browne (1992) 30 NSWLR 1
PARTIES :	Vasilios Dalamangas - First Plaintiff Chryso Dalamangas - Second Plaintiff Joanne Ferekos - Third Plaintiff Star City Pty Ltd - First Defendant New South Wales Casino Control Authority - Third Defendant
FILE NUMBER(S):	SC 20076/01
COUNSEL:	Mr P Mahony - Plaintiffs / Respondents Mr JJ Graves SC; Ms C Webster - Third Defendant / Applicant
SOLICITORS:	Maurice Blackburn Cashman - Plaintiffs / Resondents I V Knight Crown Solicitor - Third Defendant / Applicant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BERGIN J

10 AUGUST 2004

20076/01 VASILIOS DALAMANGAS & ORS v STAR CITY PTY LTD & ANOR

JUDGMENT

1 This is an application by the third defendant, the New South Wales Casino Control Authority (the Authority), by Notice of Motion filed on 18 December 2003, for an order pursuant to Part 13 Rule 5 of the Supreme Court Rules 1970 for dismissal of the proceedings against it.

2 The plaintiffs, Vasilios Dalamangas, Chryso Dalamangas and Joanne Ferekos are the parents and de facto wife respectively of the late Pangiotis Dalamangas (the deceased) who died on 31 January 1998 at the premises of Star City Pty Ltd (the Casino) after being restrained by a number of security personnel employed by the Casino. It is claimed that the particular restraint utilised by the security personnel caused the deceased’s death. The plaintiffs claim damages at common law and under the Compensation to Relatives Act 1897 (NSW) for shock and other injuries allegedly suffered on learning of the death, allegedly founded on breaches of statutory duties claimed to be imposed on the Authority under the Casino Control Act 1992 (the Act) as in force at that time.

3 The claims made against the Authority in the Statement of Claim include allegations that the Authority “is the entity having the obligation to licence” Casino security personnel as “special employees” within the meaning of s 43 of the Act. It is claimed that the Authority breached its statutory duty in relation to the licensing of the Casino security personnel, in that it granted licences to security personnel who were not or had not been demonstrated to be suitable applicants to be granted licences. A further claim is made that the Authority breached its statutory duty, imposed by s 30 of the Act, by failing to conduct investigations into the Casino operations and properly auditing the security system in place. I understand it is alleged that had the Authority conducted the investigation and/or audit it would have discovered (and been in a position to stop) the security personnel using the inappropriate and dangerous restraint technique that is alleged to have caused the deceased’s death.

4 The application was heard on 4 August 2004 when Mr JJ Graves SC leading Ms C Webster of counsel appeared for the Authority and Mr P Mahony of counsel appeared for the plaintiffs. The Authority relied upon the affidavit of Paul Anthony Kenny sworn 4 August 2004. The plaintiffs relied upon the affidavit of Julie Ann Mahony sworn 19 November 2003.

5 The Authority accepted for the purposes of the application that it would be assumed against the Authority that: (a) the Authority granted licences to “special employees” of the Casino who were not or had not been demonstrated to be suitable applicants to be granted licences; (b) that it had not prior to 31 January 1998 conducted an audit of the security practices and procedures in use at the Casino; (c) that it had not detected the routine use of unauthorised and dangerous restraint techniques by Casino security personnel; and (d) that it had not taken corrective action to prevent the continuance of the use of such techniques. It was agreed that the Court should proceed on the basis that the Act imposes the statutory duties on the Authority as alleged by the plaintiff and on the assumption that such duties were breached. It was also agreed that the Court should proceed on the basis that such breaches were causally related to the deceased’s death.

6 The main issue argued on the application is whether the plaintiffs have any right of action in respect of such breaches. The Authority argued that it did and does not owe a duty of care either to the deceased or to the plaintiffs in the exercise of its functions and powers under the Act.

Statutory regime

7 The Act provides “for the establishment of” the Casino “and the control of its operations; to constitute the Casino Control Authority; and for related purposes”. The objects of the Authority are to maintain and administer systems for the licensing, supervision and control of the Casino, for the purpose of: (a) ensuring that the management and operation of the Casino remains free from criminal influence or exploitation; (b) ensuring that gaming in the Casino is conducted honestly; and (c) containing and controlling the potential of the Casino to cause harm to the public interest and to individuals and families (s.140). The general functions of the Authority are those that are necessary or convenient to enable it to achieve its objects and those that are conferred on it by the Act, or any other Act or the general law. Its specific functions are:

(a) at the direction of the Minister, to invite expressions of interest for the establishment and operation of casinos and applications for casino licences and to consider and determine those applications,
(b) to consider and determine applications for other licences under this Act,
(c) to keep under constant review all matters connected with casinos and the activities of casino operators, persons associated with casino operators, and persons who are in a position to exercise direct or indirect control over the casino operators or persons associated with casino operators,
(d) to review and report to the Minister on the efficiency and effectiveness with which the Director exercises the functions of Director under this Act,
(e) to advise the Minister on matters relating to the administration of this Act,

(f) to approve the games to be played in a casino and the rules under which such games are played,
(g) to approve gaming equipment for use in a casino,
(h) to approve the operating time of a casino,
(i) to conduct and fund the conduct of research into matters concerning casinos.

8 Part 7 of the Act deals with Casino Surveillance. Section 104 provides that the Director of Casino Surveillance (appointed by the Governor pursuant to s 102) has the following functions:

(a) to appoint, supervise, direct and control inspectors under this Act,
(b) to directly supervise and inspect the operations of a casino and the conduct of gaming in a casino,
(c) to detect offences committed in or in relation to a casino and to prosecute offences under this Act,
(d) to consider and report to the Authority on applications for licences under this Act and on the need for disciplinary action against licensees,
(e) to make recommendations to the Authority on the games that may be played in a casino and the rules of those games,
(f) to prepare and furnish to the Authority and the Minister such reports concerning the operations of casinos and the conduct of gaming in them as the Director thinks fit or as the Authority or the Minister may request,
(g) to report generally to the Authority and the Minister on the administration of this Act,
(h) to assist the Authority generally, as the Authority sees fit,
(i) to exercise such other functions as may be conferred or imposed on the Director by or under this or any other Act.
(2) The Director has all the functions of an inspector and is to be considered to be an inspector.

9 Inspectors are appointed by the Director under s 106 and have various functions under the Act including a right of entry onto Casino premises: ss 77, 108. Section 108(1) provides that an inspector may at any time enter and remain on Casino premises for the purposes of:

(a) observing any of the operations of the casino,

(b) ascertaining whether the operation of the casino is being properly conducted, supervised and managed,

(c) ascertaining whether the provisions of this Act are being complied with,

(d) in any other respect, exercising his or her functions under this Act.

10 Functions of inspectors are set out in s109:

(a) to supervise operations in a casino, and to inspect the gaming equipment used in a casino, for the purpose of ascertaining whether or not the casino operator is complying with the provisions of this Act, the conditions of the casino licence and any directions given by the Authority under this Act,

(b) to supervise the handling and counting of money in a casino,

(c) to assist in any other manner, where necessary, in the detection of offences committed against this Act in a casino,

(d) to receive and investigate complaints, in accordance with section 110, from casino patrons relating to the conduct of gaming in a casino.

(e) to report to the Director regarding operations in a casino.

(f) such other functions as may be conferred or imposed on inspectors by or under this or any other Act.

11 “Operations” are defined in s 3 of the Act to mean:

(a) the conduct of gaming in the casino,
(b) the management and supervision of the conduct of gaming in the casino,
(c) money counting in, and in relation to, the casino,
(d) accounting procedures in, and in relation to, the casino,
(e) the use of storage areas in the casino, and
(f) other matters affecting, or arising out of, activities in the casino.

Licensing of employees

12 Pursuant to s 43(1) “special employee” means a person who:

(a) is employed or working in a casino in a managerial capacity or who is authorised to make decisions, involving the exercise of his or her discretion, that regulate operations in a casino, or
(b) is employed or working in a casino in any capacity relating to any of the following activities:

· the conduct of gaming,

· the movement of money or chips about the casino,

· the exchange of money or chips to patrons in the casino,

· the counting of money or chips in the casino,

· the operation, maintenance, construction or repair of gaming equipment,

· the supervision of any of the above activities,

· casino security,

· any other activity relating to operations in the casino that is prescribed for the purposes of this definition.

13 Special employees must hold a licence issued by the Authority. An application for a licence is to be accompanied by a certificate from the casino operator as to the competence of the applicant to exercise the functions specified in the certificate: s 46(1)(c). The Authority refers applications for a licence to the Director for report and recommendation: s 50(1). If, after investigation, the Director recommends against granting a licence, the applicant is to be allowed an opportunity to make submissions to the Authority as to why the application should not be refused: s 50(3). Section 52, “Determination of applications” provides:

(1) The authority is to consider an application for a licence and is to take into account the report and recommendation of the Director and any submissions made by the applicant within the time allowed.
(2) The Authority is not to grant a licence unless satisfied that the applicant is a suitable person to exercise the functions that the proposed licence will authorise the person to exercise.
(3) For that purpose, the Authority is to make an assessment of:
(a) the integrity, responsibility, personal background and financial stability of the applicant, and
(b) the general reputation of the applicant having regard to character, honesty and integrity, and
(c) the suitability of the applicant to perform the type of work proposed to be performed by the applicant as a licensee.
(4) The Authority is to determine the application by either granting a licence to the applicant or declining to grant a licence, and is to notify the applicant in writing of its decision.
(5) The Authority is not required to give reasons for its decision but may give reasons if it thinks fit.

14 Section 44 provides:

(1) A person must not exercise in or in relation to a casino any of the functions of a special employee except in accordance with the authority conferred on the person by a licence.
Maximum penalty: 50 penalty units.
(2) A licence authorises the holder of the licence to exercise in or in relation to a casino the functions specified in the licence subject to the functions being exercised in accordance with the provisions of this Act and the conditions of the licence.
(3) A casino operator must not:
(a) employ or use the services of a person to exercise any function of a special employee in or in relation to the casino, or
(b) allocate or permit or suffer to be allocated to a person the exercise of any function of a special employee in or in relation to the casino,
unless the person is authorised by a licence to exercise the function concerned.
Maximum penalty: 100 penalty units.

Directions by Authority to the Casino

15 Section 29 provides:

(1) The Authority may give a casino operator a written direction that relates to the conduct, supervision or control of operations in the casino.
(2) It is a condition of a casino licence that the casino operator must comply with such a direction as soon as it takes effect.
(3) The direction takes effect when the direction is given to the casino operator or on a later date specified in the direction.
(4) The power conferred by this section includes a power to give a direction to a casino operator to adopt, vary, cease or refrain from any practice in respect of the conduct of casino operations.
(5) A direction under this section is not to be inconsistent with this Act or the conditions of the casino licence.

Investigations

16 Section 30 of the Act , “General Investigations”, provides:

(1) The Authority is to investigate a casino from time to time and at any time that the Authority thinks it desirable or when directed to do so by the Minister.
(2) The investigation may relate to (but is not limited to) any of the following matters:
(a) the casino and operations in the casino,
(b) the casino operator or a person who, in the opinion of the Authority, is an associate of the casino operator,
(c) a person or persons who in the opinion of the Authority could affect the exercise of functions in or in relation to the casino,
(d) a person or persons who, in the opinion of the Authority, could be in a position to exercise direct or indirect control over the casino operator, or an associate of the casino operator, in relation to functions in or in relation to the casino.
(3) The Authority may make a report to the Minister on the results of such an investigation if it thinks it desirable to do so and must make such a report if the investigation was made at the direction of the Minister.
(4) The Authority is to take whatever action under this Act it considers appropriate in the light of the results of an investigation.

17 Section 31, “Regular investigation of operator’s suitability etc”, provides:

(1) Not later than 3 years after the grant of a casino licence, and thereafter at intervals not exceeding 3 years, the Authority must investigate and form an opinion as to whether or not:
(a) the casino operator is a suitable person to continue to give effect to the casino licence and this Act, and
(b) it is in the public interest that the casino licence should continue in force.
(2) The Authority is to report its findings and opinion to the Minister, giving reasons for its opinion, and is to take whatever action under this Act it considers appropriate in the light of its findings.

Training

18 Section 64, “Training courses for employees”, provides:

(1) It is a condition of a casino licence that the casino operator must provide for persons employed or to be employed as special employees in the casino training courses in relation to the playing of games, the conduct of games and associated activities in connection with casino operations.
(2) Training courses provided for the purposes of this section must:
(a) be conducted by the casino operator or, with the approval of the Authority, the nominee of the casino operator, and
(b) be of such content, format and duration as is approved by the Authority from time to time.

19 Section 65, “Casino layout to be as approved by the Authority” provides:

(1) It is a condition of a casino licence that gaming is not to be conducted in the casino unless the facilities provided in relation to the conduct and monitoring of operations in the casino are in accordance with plans, diagrams and specifications that are for the time being approved by the Authority under this section.
(2) The Authority may approve plans, diagrams and specifications indicating the following:
(a) the situation within the casino of gaming tables and gaming equipment, counting rooms, cages and other facilities provided for operations in the casino,
(b) the manner in which a closed circuit television system operates within the casino, including details of the positions and field of coverage of the cameras and viewing screens and the height of the cameras above the gaming,
(c) the position and description of a catwalk surveillance system for the direct visual monitoring of operations in the casino,
(d) the communication facilities provided for persons monitoring operations in the casino, whether by means of the closed circuit television system or the catwalk surveillance system, or otherwise.
(3) The Authority may amend an approval under this section by giving not less than 14 days’ (sic) written notice of the amendment to the casino operator or such lesser period of notice as the operator agrees to accept in a particular case.

Evidence

20 In evidence before me is the “Expert Security Report” by Mr Peter M Smith, a licensed security consultant with The Ulong Group dated 30 July 2003. That report includes the following:

In House Training
In addition to the mandatory security training required for licensing purposes, information provided indicates that prior to performing security duties at the Casino, all prospective security officers were required to undertake the Casino’s ‘in-house’ training.
From information contained in a statement provided by the Casino’s Security Training Administrator, Mr Simon Nowlan, the Security Training Manual in use at the time (i.e. the Sydney Harbour Casino – Security Department Training Lesson Plans) had been approved by the Casino Control Authority (CCA) approximately 6 months earlier, in July 1997 (s46(c)) Casino Control Act 1992 (NSW).
Mr Nowlan further indicated that in-house training was provided to both permanent and casual security staff, with casual staff undertaking a condensed version of the training.
NOTE : From the information provided, it is unclear whether the Casino’s ‘in-house’ training was a mandatory training requirement of the licensing process under the Casino Control Act.
…
As previously canvassed, the use of the ‘hog-tie’ restraint was not the grounding restraint technique authorised for use by the Casino Control Authority and based on the comments of the Security Shift Supervisor (Malcolm Carter). This unauthorised technique was utilised as a matter of course and routinely applied.
Given these comments from a senior security staff member, it would be difficult to accept that the more senior security management personnel were unaware of its use.
Given the provisions of the Casino Control Act with respect to the Authority conducting investigations of Casino operations (s30) presumably the auditing requirements of a system requiring their approval before implementation would also rest with the Authority.

21 It is apparent from this evidence that the Authority approved the “content, format and duration” of the training courses in the training manual in force at the time of this incident.

Consideration

22 The Authority submitted that the Act clearly establishes separate and distinct roles in relation to the operations of the Casino for each of Star City, the Director of Casino Surveillance and the inspectors and the Authority. It was submitted that Star City, as the operator of the Casino, employed staff who performed a variety of roles in the Casino, with managerial staff making discretionary decisions that regulate the operations of the Casino. Those functions included the matters set out in s 43(1) of the Act.

23 Both Star City and the Director were involved in the licensing process but s 104(b) was emphasised, it providing that the Director was “to directly supervise and inspect the operations of a Casino and the conduct of gaming” in the Casino.

24 The Authority also emphasised the contrast between ss 140 and 141 of the Act in relation to the objects and functions of the Authority and ss 104, 108 and 109 in relation to the Director and the Inspectors. It was submitted that the Authority’s role is clearly removed from the day-to-day operations of the Casino and it is responsible only for the general oversight of the operations of the Casino. It was submitted that as a matter of statutory construction, s 30 confers on the Authority a general power to conduct investigations in connection with its objects and functions with respect to the overall operations of the Casino and the identity of the operator of the Casino.

25 The Authority submitted that the Act does not manifest an intention to confer a civil cause of action for breach of statutory duties on the plaintiffs or on the deceased. It was submitted that given the objects and functions of the Authority in ss 140 and 141 of the Act, and the statutory scheme as a whole, the Authority’s statutory duties are clearly intended for the benefit of the community generally rather than any particular individual or class.

26 It was submitted for the plaintiffs that what is clear from the Act is that the legislature has not provided an immunity from suit for a breach of statutory duty such as is found, for example, in s 32 of the Occupational Health and Safety Act 2000 which provides:

32 Civil Liability not affected by this Part
(1) Nothing in this Part is to be construed
(a) as conferring a right of action in any civil proceedings in respect of any contravention, whether by act or omission, of any provision of this Part, or
(b) as conferring a defence to an action in any civil proceedings or as otherwise affecting a right of action in any civil proceedings.
(2) Subsection (1) does not affect the extent (if any) to which a breach of duty imposed by the regulations is actionable (including any regulation that adapts a provision of this Part).

27 It was submitted that had the legislature intended to proscribe such civil liability, a similar section could have been included in the Act and it was not.

28 Most of the decisions in which the potential liability of a public authority for negligent performance of statutory duties has been considered by the High Court concern an alleged failure by the authority to exercise a statutory power or function: Sutherland Shire Council v Heyman (1985) 197 CLR 424; Pyrenees Shire Council v Day (1998) 192 CLR 330; Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; Brodie v Singleton Shire Council; Ghanthous v Hawkesbury Shire Council (2001) 206 CLR 512; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540. The issue has also recently been considered by the Court of Appeal in Amaca Pty Limited v State of New South Wales [2004] NSWCA 124.

29 In Sullivan v Moody; Thompson v Connon (2001) 207 CLR 562, the High Court said at paragraph 42:

42 The argument was conducted upon the basis that it was foreseeable that harm of the kind allegedly suffered by the appellants might result from want of care on the part of those who investigated the possibility that the children had been sexually abused. But the fact that it is foreseeable, in the sense of being a real and not far-fetched possibility, that a careless act or omission on the part of one person may cause harm to another does not mean that the first person is subject to a legal liability to compensate the second by way of damages for negligence if there is such carelessness, and harm results. If it were otherwise, at least two consequences would follow. First, the law would subject citizens to an intolerable burden of potential liability, and constrain their freedom of action in a gross manner. Secondly, the tort of negligence would subvert many other principles of law, and statutory provisions, which strike a balance of rights and obligations, duties and freedoms. A defendant will only be liable, in negligence, for failure to take reasonable care to prevent a certain kind of foreseeable harm to a plaintiff, in circumstances where the law imposes a duty to take such care.

30 The Authority submitted that there must be a relationship between the parties that gives rise to a duty on the part of the Authority to take care to avoid a foreseeable risk of harm to the plaintiffs and/or to the deceased. It is the totality of that relationship, not merely the foresight and capacity to act on the part of one of them, that is the basis on which a duty of care may be recognised: Graham Barclay per Gummow and Hayne JJ at [145].

31 In Crimmins the majority (Gleeson CJ, Gaudron, McHugh and Callinan JJ) held that the Australian Stevedoring Industry Authority owed a common law duty to take reasonable care to protect the worker from reasonably foreseeable risks of injury arising from employment by registered stevedores. It was held that the Authority had, or should have had, knowledge of the special risks to which members of the class which included the worker were subject, and was in a position to control or minimize those risks by the exercise of its statutory powers. Gaudron J said (footnotes omitted):

[25] It is not in issue that a statutory body, such as the Authority, may come under a common law duty of care both in relation to the exercise and the failure to exercise its powers and functions. Liability will arise in negligence in relation to the failure to exercise a power or function only if there is, in the circumstances, a duty to act. What is in question is not a statutory duty of the kind enforceable by public law remedy. Rather, it is a duty called into existence by the common law by reason that the relationship between the statutory body and some member or members of the public is such as to give rise to a duty to take some positive step or steps to avoid a foreseeable risk of harm to the person or persons concerned.
…
[27] … Where it is contended that a statutory body is not subject to a common law duty in relation to the exercise or non-exercise of a power or function because of the nature or purpose of that power, what is being put is that, as a matter of implication, the legislation reveals an intention to exclude the common law in relation to the exercise or non-exercise of that power.

32 The Authority’s functions and powers in Crimmins were to be performed and exercised “with a view to securing the expeditious, safe and efficient performance of stevedoring operations” (s 8 Stevedoring Industry Act 1956 (Cth)).

33 The Authority distinguishes the facts of the present case from Crimmins on the basis that the Authority in this case does not have direct control over the workers, in particular the special employees at the Casino. It was submitted that there is no basis for the imposition of a duty of care on the Authority in circumstances where the primary and direct control over the day-to-day operations of the Casino and the activities of Casino security personnel is clearly exercised by Star City and the Director. It was also submitted that the actual damage alleged is not the direct consequence of the action of the Authority or anyone in its employ, nor of the Director or any of his Inspectors, but of the employees of Star City. It was submitted that the Authority did not actively intervene so as to increase the risk of harm and there was no prior relationship with the deceased or the plaintiffs.

34 Finally it was submitted that neither the deceased nor the plaintiffs were relying specifically on the Authority to exercise its statutory powers to protect their interests and to the extent that they may have considered who was obliged to take reasonable care for their safety, their attention would have been drawn to Star City as the operator of the Casino and employer of the staff.

35 On this application the Authority must establish that the plaintiffs’ cases are so clearly untenable that they cannot possibly succeed: General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125. Exceptional caution must be exercised and summary dismissal should not be granted unless it is clear there is no real question to be tried: Webster & Anor v Lampard (1993) 177 CLR 598.

36 In Wickstead v Browne (1992) 30 NSWLR 1 Kirby P said at 5 - 6:

Common experience teaches that it is usually more efficient and just to consider the viability of a cause of action when the facts said to support it are adduced and the suggested action can be judged with a full understanding of all relevant evidence. Testimony gives colour and content to the application and development of legal principle.
…
Out of the detail of the evidence ultimately proved, affecting the relationship of the respondent and the appellant, may arise a finding of a duty of care which the common law of negligence would uphold.

37 It seems to me that there is force in the Authority’s submission that its role is supervisory and not one involved in the day-to-day management of the general gambling operations of the Casino. However, in my view s 64 changes that role to one of intrusion into the way in which security personnel are permitted and authorised to behave.

38 The Casino must train its personnel “in-house” in the manner authorised by the Authority. Mr Smith’s expert report establishes, at least on this Motion, that the various restraints that were to be used on patrons at the Casino were in fact the subject of the Authority’s approval. I should hasten to say that it is not suggested in the plaintiffs’ claims that the actual restraint used on the deceased was a restraint expressly authorised by the Authority. The analysis is rather to demonstrate that the Authority’s role was not merely supervisory but was involved in approving the restraints that the security officer would use or could use on the patrons of the Casino.

39 The Authority was to investigate the Casino “from time to time”. That investigation “may relate to” the “operations” of the Casino (s 30). The “operations” include “other matters affecting, or arising out of, activities in the“ Casino (s 3(1)). In my view the security system or the activity of “casino security” (s 43(b)) falls within the definition of “operations” of the Casino in that it is one of the “other matters” arising out of the activities in the Casino. The Authority had power to direct the Casino to “adopt, vary, cease or refrain from any practice in respect of the conduct of casino operations”. Such a direction took effect either from the date it was issued or a later date specified in the direction. The Casino was obliged to comply with any such direction (s 29).

40 The objects of the Authority are “to maintain and administer systems for the licensing, supervision and control” of the Casino for purposes including the exclusion of criminal influence and exploitation and for ensuring gaming is conducted honestly (s 140). In pursuing its objects, in particular the maintenance and administration of systems for the supervision and control of the Casino, including the Casino security system, the Authority endorsed the manner in which special employees could restrain the patrons of the Casino by its approval of the “content” of the training courses (s 64(2)(b)). Its capacity to maintain and administer that system included the process of an investigation into that system from time to time.

41 It is true that under the Act there are distinct roles for the Casino, the Director and the Authority. It is also true that the Authority relies, in part, on the Director to assist it with its task of licensing special employees. The example I raised in argument of the licensing of drivers rendering the licensing authority liable at the suit of person injured in a motor vehicle accident is really not analogous to the present situation. Nor is the example of the possible liability of the licensing authority of medical practitioners where patients willingly subject themselves to surgery. Here there is the power exercised by the Authority in approving the particular manner in which the Casino employees may make bodily contact with the patrons of the Casino if they behave in a particular manner. This is arguably a special risk for that particular class of patrons being those that refuse the direction of a special employee or who cause trouble at the Casino.

42 The claim that the exercise of these statutory obligations gave to the Authority the knowledge that the patrons of the Casino would have been exposed to the use of restraints by special employees is not untenable. The claim that the Authority’s failure to administer the system in a manner that excluded the use of the dangerous restraint is causally related to the death of the deceased is also not untenable. The claim that these particular statutory obligations imposed on the Authority a duty of care to ensure that the partons upon which the restraints were used were not at risk of death is in my view not untenable. In my view the intrusion into the operational activities of the special employees with the endorsement of these restraints and the requirement for maintenance of the system suggests that the Act did not intend to exclude the Authority from suit by the deceased or the plaintiffs.

43 I am not satisfied that the plaintiffs’ cases are clearly untenable. I refuse the Authority’s application. The Authority is to pay the plaintiffs’ costs of the Motion.

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Last Modified: 08/10/2004