Driving Range Safety

Identifying the source of the risk

The first question should be deceptively simple: what exactly caused the accident?

For example:

• was it a normal slice?

• did it pass through a gap in netting?

• did it rebound from a divider?

• did it pass over or underneath protective netting?

• was the claimant in an area where balls could foreseeably reach?

• was the range being operated outside its intended configuration?

On a traditional single-storey range, the risks may include rebounds caused by inadequate divider or ceiling design; injury caused by another golfer's club; being struck by a golf ball, including when entering the outfield; trips on mats or other surfaces; and risks to staff collecting balls while the range remains operational.

The emergence of multi-storey ranges introduces additional risks, including slips and trips on staircases, falls from upper levels or over cantilevered safety netting, failures or inadequate maintenance of safety netting, and members of the public entering entertainment areas situated behind or adjacent to driving bays

Risks on a single-storey range are fairly evident. For example

• Rebounds including Inadequate divider or ceiling design to minimise the risk of rebounds

• Being hit by another golfer’s club

• Being hit by a golf ball by entering the outfield

• Tripping on mats

• Balls existing range outfields

• Staff collecting balls being hurt whilst on duty

With the advent of multi-story ranges, further risks involving the following can be added to the list

• Slip and trip on staircases

• Falls over the first floor cantilevered safety netting

• Badly maintained safety netting

• Presence of members of the public in entertainment areas behind the driving bays.

A claim may involve a ball travelling through a protective net; a ball ricocheting from a structure; a customer entering an area where they should not have been; a defective bay divider; a player striking a ball from the wrong position; or an employee failing to supervise or intervene.

Those factual distinctions matter because the legal analysis may change considerably.

If the injury resulted from the physical condition of the premises — for example, inadequate netting, defective barriers, an unsafe layout or poorly maintained protective equipment — the Occupiers' Liability Act 1957 is likely to be central. Section 2(2) imposes the familiar common duty of care: the occupier must take such care as is reasonable in all the circumstances to see that visitors are reasonably safe for the purposes for which they are invited or permitted to be there.

There may also be a case in negligence against the individual golfer, depending on what occurred, while the operator may face a separate allegation that its systems failed to manage a foreseeable risk.

The claimant's solicitor should therefore resist the temptation to plead the case simply as "a golf ball hit the claimant because the range was unsafe". The mechanism of injury should be established first.

What is the significance of the 1957 Occupiers Liability Act?

The solicitor should identify the precise statutory provision relied upon and consider whether Parliament intended a private civil remedy for its breach. In many cases the regulatory material will be evidential rather than itself constitutive of the cause of action.

A driving-range customer will ordinarily be a visitor for the purposes of the Occupiers' Liability Act 1957. The statutory duty is one of reasonable safety, rather than a guarantee that no accident will occur.

That distinction is particularly important in recreational activities.

The operator is not required to eliminate every conceivable risk. The question is what precautions were reasonable having regard to the circumstances, including the likelihood of the accident, the seriousness of the potential injury, the practicability and cost of precautions, and the nature of the activity.

The Act itself recognises that visitors may encounter risks inherent in an activity. Section 2(5) provides that the common duty does not impose an obligation in respect of risks willingly accepted by the visitor, although whether a risk was willingly accepted is determined according to the ordinary principles applicable to acceptance of risk.

That provision should not, however, be converted into the proposition that every person who enters a driving range automatically accepts every risk associated with golf balls.

What is the "obvious risk" argument?

The operator's likely defence will often be that the claimant knew golf balls were being struck and therefore understood the danger.

There is useful guidance from the Supreme Court in Tomlinson v Congleton Borough Council. The case concerned an accident involving diving rather than golf, but the court's discussion of obvious risks and recreational activities is highly relevant by analogy. The Supreme Court emphasised that it will ordinarily be rare for an occupier to be required to protect people against risks inherent in activities they freely choose to undertake.

That does not mean that an occupier is relieved of its duty whenever an activity is inherently risky.

A driving range exists precisely because customers are permitted to strike golf balls. The operator has chosen the layout, the orientation of bays, the positioning and specification of nets, barriers and walkways, and the procedures governing how customers use the facility.

The legal question may therefore be framed as:

Was the claimant injured by the ordinary and unavoidable risk of playing golf, or by a risk which the operator could reasonably have controlled?

That is a much more productive question than simply asking whether golf balls are dangerous.

For example, a ball which is accidentally sliced within the intended hitting area may present an inherent feature of the activity. A ball escaping because a safety net had deteriorated, because a protective barrier was inadequately designed, or because customers were permitted to stand in an unsafe location raises a different issue.

Range Design

The PGA of Great Britain and Ireland and the Organisation of Golf Range Owners published “Golf Ranges – a Design Guide” which sadly is no longer in print but electronic copies are still available.

This guidance document was commissioned because of the large number of accidents on ranges. It provided detailed design guidance for ranges and became an industry guideline.

The principles of good design seek to mitigate, ameliorate or eliminate risks on a range by good design but yet ranges are still designed and constructed where obvious risks are not addressed.

Where the Design Guide is applicable to the range in question, it may provide an important benchmark against which the design and operation of the facility can be examined. Its relevance will depend upon the date of construction or alteration, the nature of the particular range and the extent to which the guidance was accepted within the industry at the material time.

Failure to take industry design guidance into account can be an important factor in any range accident claim.

Warnings are not necessarily enough

Operators frequently rely on warning signs.

A sign saying "Golf balls may cause serious injury" may be useful evidence, but it is not necessarily a complete answer. Section 2(4)(a) of the 1957 Act expressly provides that a warning does not automatically absolve an occupier from liability; the question is whether, in all the circumstances, the warning was sufficient to enable the visitor to be reasonably safe.

For a claimant solicitor, the important questions include:

• Where was the warning positioned?

• Could the claimant actually see it?

• When was it presented to the claimant?

• Was the wording sufficiently clear?

• Did it identify the particular risk?

• Was the warning consistent with the physical layout?

• Were customers given instructions before using the range?

• Were staff expected to monitor compliance?

• Did the operator know that customers routinely ignored or misunderstood the warning?

A warning that merely states the obvious may have limited value if the real issue is an unsafe system.

The signage should be considered in relation to whether it was a warning sign or an instructional sign.

Where a range operates with little or no direct supervision, an important question is whether the operator has nevertheless taken reasonable steps to regulate customer behaviour and ensure that users understand how the facility is to be used.

The introduction of alcohol and entertainment into the range environment may also require the operator's risk assessment to address risks which were less significant on traditional ranges. The relevant issue is not simply that alcohol is available, but whether the operator has considered how the combination of alcohol, spectators, recreational activity and the physical layout affect the foreseeable behaviour of customers.

The previous segregation of those using the bays and others has disappeared on many new multi-storey ranges.

Evidence is likely to determine the case

Driving-range claims are particularly susceptible to evidential problems.

The accident may last less than a second. By the time solicitors become involved, the net may have been repaired, the bay altered, the warning sign replaced and the employee who witnessed the incident may have left.

Early evidence preservation is therefore critical.

A solicitor should consider seeking:

Design information. It may also be worth establishing whether the range was designed, constructed or subsequently altered with reference to the guidance, and whether the operator or its insurers held a copy of it

CCTV. Many ranges have cameras covering reception, bays and surrounding areas. Retention periods may be short. A preservation request should be sent at an early stage identifying CCTV, photographs, electronic booking records, incident reports, maintenance records and relevant communications, and requesting that potentially relevant material is not deleted or overwritten.

Photographs and video. The claimant's own photographs can be important, but contemporaneous independent evidence is preferable. The solicitor should consider photographing the claimant's position, the relevant bay, netting, barriers, sightlines and surrounding bays.

The accident book. Entries may establish the operator's contemporaneous account and identify witnesses.

Risk assessments. These may reveal what risks the operator had identified and what control measures it considered necessary.

Inspection and maintenance records. Particularly important where netting, poles, barriers or other safety infrastructure is alleged to have failed.

Training records. If employees were responsible for supervision or safety procedures, their training may become relevant.

Customer instructions. Terms displayed at reception, booking screens, bay signage and induction material should all be obtained.

Previous incidents. Complaints and previous accidents can potentially be important to knowledge and foreseeability, although their relevance will depend upon their factual similarity.

Electronic booking records because they may establish:

• which bay the claimant occupied;

• the time of the accident;

• who else was using adjacent bays;

• whether the facility was operating normally;

• and potentially the identity of witnesses.

A request for disclosure should therefore be drafted with the physical operation of the range in mind rather than simply asking for "all documents relating to the accident".

Range Health and safety material

There may also be a regulatory dimension.

Section 3 of the Health and Safety at Work etc. Act 1974 imposes duties on employers conducting an undertaking in relation to persons who are not their employees and who may be affected by the undertaking. The statutory obligation is to conduct the undertaking so far as reasonably practicable so that such persons are not exposed to risks to their health and safety.

This does not mean that breach of the 1974 Act automatically establishes civil liability. Nevertheless, health-and-safety documentation can provide useful factual evidence concerning the operator's identification and management of risk.

The solicitor should distinguish carefully between:

the existence of a regulatory obligation;

evidence of what the operator knew or considered necessary;

the existence of a civil duty;

breach of that civil duty; and

causation.

Conflating those issues can weaken an otherwise strong pleading.

What about the golfer who hit the ball?

Where another customer caused the injury, the operator may argue that the accident was caused by a third party over whom it had no control.

That may be an important defence, but it should not automatically end the investigation.

The relevant questions include whether the golfer was behaving in a way that was reasonably foreseeable

whether the operator had rules governing play

whether those rules were communicated

whether staff were expected to intervene

whether the claimant was in an area where customers were permitted to stand

and whether the physical design of the facility made the particular accident foreseeable

There may also be questions concerning the identity and conduct of the individual golfer or those in attendance including the behaviour and competency of staff members where they could see bad behaviour.

A claimant who has suffered a serious injury should therefore consider obtaining witness evidence from everyone present rather than treating the operator as the only potential defendant.

Exclusion clauses and the small print

Another familiar feature of recreational businesses is the liability disclaimer.

The operator may point to terms stating that customers use the facility at their own risk or that the business accepts no responsibility for injury.

For a commercial driving range operating as a consumer business, section 65 of the Consumer Rights Act 2015 will generally prevent a trader from excluding or restricting liability for death or personal injury resulting from negligence. The precise contractual circumstances should nevertheless be checked, including the scope of section 66.

The existence of a disclaimer should therefore trigger legal analysis rather than ending it.

The solicitor should obtain the precise wording, establish when and how it was presented to the claimant (if at all) and identify the legal basis on which the defendant says it operates.

Contributory negligence

Even where primary liability is established, the claimant's own conduct may remain important.

A claimant who deliberately enters a restricted area, stands behind another player, ignores a clear instruction to remain within a designated zone, or otherwise behaves imprudently may face an allegation of contributory negligence.

Again, the factual analysis matters.

Was the claimant actually aware of the rule? Was the instruction clear? Was the area visibly prohibited? Were staff enforcing the rule? Was the claimant following the ordinary behaviour of other customers?

Tomlinson illustrates the distinction between an obvious risk and contributory negligence. The court's analysis demonstrates that the obviousness of a danger can be relevant without necessarily providing a universal answer to the underlying liability question.

Causation and quantum

A successful liability case still requires proof that the breach caused the injury.

In a straightforward case involving a direct impact, factual causation may be relatively simple. More complicated cases may involve competing explanations, particularly where the claimant suffers a pre-existing condition or where symptoms develop some time after the accident.

Medical evidence should address not merely diagnosis but causation, prognosis and the extent to which the accident materially contributed to the claimant's condition.

Quantum can also be unusually significant where the claimant's dominant hand, wrist, eye, shoulder or head is injured. A relatively small incident from the defendant's perspective can have substantial consequences for an individual whose occupation depends on manual work, driving, sporting activity or visual function.

Limitation

Personal injury claims ordinarily engage the three-year limitation period under section 11 of the Limitation Act 1980, running from the date of accrual or, where later, the claimant's date of knowledge, subject to the statutory provisions and the court's discretion concerning extension under section 33.

The limitation date should be calculated at the outset rather than left until the claim has developed.

This is particularly important in driving-range cases because liability may require extensive factual investigation. Obtaining historic maintenance records, CCTV, witness evidence and photographs can become substantially harder as time passes.

Expert evidence

In some cases, expert evidence concerning range design, protective netting, structural arrangements or the likely trajectory of a ball may be necessary. The question should not simply be whether an expert can identify a safer alternative, but whether the proposed precaution was reasonably required in the circumstances existing at the time.

The timing of any inspection is important. An expert should, where possible, inspect the range in substantially the same configuration as existed at the time of the accident. Subsequent repairs or alterations should be recorded carefully, since they may otherwise make it difficult to reconstruct the original condition.

A practical checklist for the first conference

For the solicitor, the following questions are likely to be more valuable than simply asking "how did the accident happen?":

• where was everyone standing?

• which bay was being used?

• who struck the ball?

• where did the ball travel from and to?

• was the claimant participating, spectating or simply passing through?

• what physical protection existed between the claimant and the hitting area?

• was that protection intact immediately before the accident?

• what warnings and instructions were given?

• were competent staff present?

• had the claimant received any induction or safety briefing?

• were there previous complaints or incidents?

• what did the operator do immediately after the accident?

• what evidence now exists that did not exist on the day?

Conclusion

Driving-range accidents sit at an interesting intersection between occupiers' liability, negligence, recreational risk and consumer law.

For the claimant solicitor, the central task is to identify the precise risk that caused the injury and then establish whether that risk was one the operator could and should reasonably have controlled. For the defendant solicitor, the corresponding task is to distinguish an unavoidable or willingly accepted feature of the sport from an additional danger created by the premises, the operator's systems or its employees.

The strongest cases are therefore likely to be built not around the proposition that "golf is dangerous", but around the evidence of how this particular driving range was designed, operated, supervised and maintained on the particular day.

For practitioners, the critical evidence will therefore often be the evidence showing how the range was designed, operated, supervised and maintained on the day of the accident, and whether those arrangements adequately addressed the risk which ultimately materialised.