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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Fraser (AP) v Professional Golfers' Association Ltd [2008] ScotCS CSIH_53 (11 September 2008)
URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSIH_53.html
Cite as: 2008 GWD 33-492, [2008] ScotCS CSIH_53, 2009 SCLR 324, [2008] CSIH 53

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord Kingarth

Lord Reed

Lord Marnoch

 

 

 

 

 

 

[2008] CSIH 53

A2013/00

 

 

OPINION OF THE COURT

 

delivered by LORD KINGARTH

 

in causa

 

COLIN FRASER (Assisted Person)

 

PURSUER & APPELLANT

 

against

 

THE PROFESSIONAL GOLFERS' ASSOCIATION LIMITED

 

DEFENDERS & RESPONDENTS

 

_______

 

 

Act: Sandison; Morton Fraser

Alt: Jones; Brechin Tindal Oatts

 

 

11 September 2008

 

 

[1] In this action the appellant claims damages, against the respondents, for breach of contract.

[2] The respondents are an association of professional golfers who regulate the professional playing of golf in Scotland and in the United Kingdom generally. As found by the Lord Ordinary, membership of the association is in effect essential if a person is to have any sort of career in the United Kingdom as a playing professional, golf club professional, or instructor.

[3] The appellant, who as a boy demonstrated considerable promise as a golfer, decided in or about the early 1990's that he wished to pursue a professional career in golf. He enrolled to qualify under the respondents' training programme so that he could become a member of the association. He underwent a probationary period of six months which he completed successfully.

[4] In applying for registration as a trainee, an applicant such as the appellant, on the one hand, and the respondents, on the other, agreed to be bound by a document produced by the respondents and entitled Constitution and Regulations. This document formed a contract between them. The document required, amongst other things, that applicants, after a six month probationary period, should work under the direction of an existing full member of the association, should complete a training period of not less than three years which included compulsory residential courses at the association's training school and other work, and should pass the final examination. The purpose of the three year course was to instruct applicants in all the various aspects of a golf professional's work, including teaching, the alteration and treatment of clubs, the running of the golf club or shop, and the business of being a golf professional. Applicants were also given the training manual which purported to provide instructions on all matters on which they would be examined. It was provided in the Constitution and Regulations that a registered trainee required to pass all elements of the final examination at the respondents' training centre. If such a trainee failed one or more subjects at the final examination, he was afforded two further opportunities for re-examination in that subject or subjects.

[5] The appellant attended all training courses and satisfactorily completed all study and training requirements. He therefore became entitled to sit the respondents' final examination. He was required as part of that final examination to sit a practical test. He passed all parts of this examination with the exception of the part relating to the alteration and repair of golf clubs. He accordingly re-sat that part of the examination, but again failed. Thereafter, he re-sat the practical examination for the third and final time permitted under the Regulations. On 29 November 1995 he again failed. This meant that membership of the respondents was permanently unavailable to him.

[6] The appellant, it appears, initially sought a judicial review of the respondents' decision to fail him, but this was unsuccessful. Thereafter in about July 2000 he raised the present proceedings. Putting the matter broadly at this stage his claim is that, in failing him, the respondents were in breach of an implied term of the contract between them. In particular it is averred that

"It was an implied term of the contract that the Defenders would, in conducting the club repair examination which they required him to sit in order to qualify as a member of the Association, assess his performance fairly and reasonably and by application of the standards of a careful and competent professional golf club repairer".

Further it is averred:

"Had the Defenders assessed the Pursuer's performance in the club repair examination fairly and reasonably and by application of the standards of a careful and competent professional golf club repairer, they would have awarded him a pass in the said examination, and he would have been elected to membership of the Association".

[7] Although the action as thus laid was originally dismissed by the Lord Ordinary on or about 12 March 2004 on the basis of inadequate specification, that interlocutor was successfully reclaimed, and on or about 31 May 2005 a proof before answer was allowed. Following such a proof the Lord Ordinary by interlocutor dated 25 August 2006, assoilzied the respondents, and the appellant has reclaimed against that decision. We wish to record that at no stage in the proceedings beforehand, or in the course of the hearing before us, was the question raised of whether the appellant's claim gives rise to an issue properly justiciable (a question on which, particularly as the argument before us developed, we entertain some doubt), and nothing in what we say further is to be taken as representing any considered view that it does.

[8] The examination relating to the alteration and repair of golf clubs which the appellant was asked to undertake in November 1995 was divided into certain sections. He required to carry out two practical exercises. It was necessary that he passed each. To pass he required to achieve 70% of the available marks in respect of each exercise. He failed in relation to an exercise in which he required to add four swing weights (a swing weight being the value of the weight of a club when swung) to a wooden-headed driver. He achieved only 16 out of the 30 available marks (21 marks being required to pass).

[9] As the Lord Ordinary records, what the appellant was, in outline, expected to do involved a series of practical steps. First of all the club had to be weighed on a weight balance which converted dead weights to swing weight. Thereafter the sole plate, a metal plate which covers the base of the club and which is secured by screws, required to be removed. The club then fell to be weighed again, and the head of the club placed securely in a protected clamp or vice. In order to increase the weight of the club, a hole required to be drilled in the wooden base of the club which was then filled with the appropriate amount of lead. It was important that the hole was drilled to the correct dimensions to accommodate the correct amount of lead which would add the required amount of additional weight in accordance with the manual's guideline dimensions. Once the hole had been drilled to the correct depth, and with the correct diameter, it was important that the hole was undercut. This was achieved by drilling smaller diameter holes at an angle in the base of the hole to receive the lead, which allowed for additional support and strength when the lead was poured into the hole. After the hole had been drilled to the correct dimensions, it was then filled with molten lead. The lead was to be heated with a ladle, and it was recommended that the heating process was carried out by heating the ladle which contained the lead over a Bunsen Burner or similar, rather than by heating the lead directly by means of a blow torch. The reason for this was that heating the ladle would result in the temperature of the molten lead and the ladle itself being similar, so that the molten lead would flow more evenly out of the ladle and into the hole. This was explained in the manual. It was also important that the lead was at the correct temperature before being poured from the ladle into the hole. That the temperature was correct was to be gauged in the first instance by dipping a piece of wood into the molten lead; if it smoked, the metal was too hot and might burn the wood into which it was poured. However, if the molten lead adhered to the piece of wood, the lead was at the correct temperature to be poured into the hole. Again all of this information was contained in the manual. It was then considered important that the lead was poured into the hole in one continuous movement. The hole should have been protected by the provision of a dam of plasticine or similar to prevent lead spilling onto the base of the club. The four screw holes should also have been protected. Once the hole was filled with lead, the surface of the lead was to be tapped off with a ball hammer to flatten it out, and to remove any potential air bubbles within the lead. The top of the lead was then filed or chiselled until it was flush with the surrounding wood. The club was then to be weighed once more, and the sole plate was replaced and screwed back into position. The screws should then have been flush with the plate. Once the plate was replaced the club was again weighed. The purpose of these re-weighings was to confirm that the correct additional swing weights had been introduced to the club.

[10] Having heard the evidence of a number of witnesses, including primary evidence from the appellant himself and from Mr Barton, one of the respondents' examiners, and also, in particular, evidence from Mr Harling who had been the chief examiner for the respondents for many years until his retirement and from Mr Donnachie, an experienced golf club manufacturer, who was asked on behalf of the appellant to carry out an examination of the club in question, the Lord Ordinary found, for the reasons fully set out in his opinion, that the appellant had not done a number of things he was expected to do. In particular he failed to measure the depth of the hole which he drilled. As a result it was not drilled to the correct depth. He failed to protect the hole by the provision of a dam when the lead was poured. He failed to check properly the temperature of the lead before it was poured. He failed to fill the hole in one movement and this, together with the temperature of the lead, caused about one half of the lead in the hole to break off when he attempted to tap it down and chisel off any surplus, leaving the hole only about half full of lead. As a result the appellant decided to drill a second hole. He failed to measure the depth of that hole too, but in the event (more, the Lord Ordinary considered, by luck than by judgement,) when that hole was filled the necessary overall weights were added to the club.

[11] On the other hand the Lord Ordinary found he did do a number of things which he was expected to do. Many of these were not disputed by Mr Barton. He did the initial and final weight checks, with and without the screw plate affixed. The location chosen for the first hole could not be criticised. He spilled no lead when pouring. He tapped the lead in both holes with the ball hammer and chiselled the excess. More significantly for present purposes, the Lord Ordinary found that he had done certain things which Mr Barton said he had not. He had in particular secured the head of the club in the vice and not, as Mr Barton said, the shaft. Further he had undercut the first hole (and indeed the second).

[12] The Lord Ordinary also found that although Mr Barton criticised the use of a ⅜ inch drill

"the manual explicitly opens up the possibility that on deciding what the proper dimensions of the hole should be, any reasonably skilled golf club repairer could determine within reason what size of drill should be regarded as suitable, depending on the circumstances and experience. So, while the manual suggests that a hole 1/2 inch in diameter is recommended, I accepted the evidence of most of the witnesses (Mr Barton being the only exception) that the pursuer could not be faulted for selecting a drill of ⅜ inch in diameter when deciding to drill the first hole".

[13] The Lord Ordinary also found that although Mr Barton was to some extent critical of the decision to drill a new hole (as opposed to drilling out the lead from the first and refilling it), and as to the choice of location for that second hole,

"the majority of expert witnesses consider that in appropriate circumstances a second hole may be drilled, and while the location selected by the pursuer might have had a minor effect in the way in which the club performed, such a consequence would only be of significance to a particularly skilled player".

[14] The Lord Ordinary also found that Mr Barton erred in certain respects in the setting and marking of other parts of the examination paper, although this had no direct relevance for the pursuer's claim.

[15] There was however one matter of dispute which the Lord Ordinary was unable to resolve. The respondents' position, as averred on record in Answer 5, was that the club was handed in for marking with the leading screws proud of the sole plate. This failure to secure the screws properly, it was averred, rendered the club unfit for play. Mr Barton gave evidence in accordance with these averments. The pursuer averred on Record that the sole plate screws were not proud when the club was handed in for marking and gave evidence in accordance with that averment. For reasons which the Lord Ordinary carefully explains he came to the conclusion that this was a matter on which he could not make any finding. As a result he recorded that in addition to his other failures the appellant "may or may not have failed to screw at least one screw hole flush down to the plate".

[16] When the pursuer failed the examination he received, on request, a document on a single sheet described as the final examination report. This was signed by Mr Barton (and by another examiner Mr Holland, who in the event the Lord Ordinary found was unable to give much evidence of assistance to the Court). This disclosed that the appellant had been found to be below standard in respect of the relevant task in choice and use of tools, level of practical ability, and knowledge and application of correct techniques. It ended with a short section headed "Comments", as follows:

"Colin used wrong sized drills - let the lead go hard whilst pouring - instead of putting right his mistake drilled another hole in the wrong position - a lot more thought is needed with reference to application of correct techniques."

[17] The above document was, it appeared, originally appended to the respondents' printed examination paper on which marks were recorded for different parts or aspects of the particular job in question. This was recovered at an early stage of the present litigation. The relevant printed section (together with the marks awarded, which were handwritten) featured heavily in the course of the argument in this reclaiming motion and appeared (together with certain handwritten crosses and a tick to which we refer later) as follows:-

"Increase the swing weight of a wood by 4 points

Pass Marks

Mark Awarded

Initial and final dead and swing weight checks: with and without place. Plate Removal

 

6

6

Drilling hole:

Locating correct position 12mm (1/2¨) drill, hole depth 6mm (1/4¨), position and protection of club in vice, undercutting hole

 

5

1

Preparing hole to receive lead:

 

Dam and protection of holes

2

0

Filling hole with lead:

Checking temperature of lead, care in pouring, cooling, tapping lead, removing excess

 

5

2

Correct use of swing weight balance

 

2

2

Fitness of club for play

 

10

5

 

TOTAL

16"

[18] In the pleadings, and it would appear in submission to the Lord Ordinary, the main concentration of the appellant's case was on the criticisms of him in the comments in the final examination report, which were said to be "unjustified" by reference to the standards of a careful and competent professional golf club repairer. In particular in Condescendence 7 it is averred:

"The Report made three criticisms of the Pursuer's performance in said examination: (a) that he had used the wrong drill size; (b) that he had let the lead go hard while pouring; and (c) that he drilled a further cavity to add more weight rather than drilling out the first cavity made by him and refilling it. None of these criticisms was justified by the provisions of the Training Manual or by reference to the standards of a competent and careful professional golf club repairer".

[19] In the following three articles of condescendence the pursuer's case was expanded in respect of each of the three identified criticisms. In condescendence 11 it was then averred inter alia:

"In the circumstances condescended upon, the Pursuer carried out satisfactorily the operation of adding the required weight to the club. No method used by him was forbidden by the Training Manual. No method used by him would not have been adopted by a careful and competent professional golf club repairer".

[20] The Lord Ordinary considered each of the three main areas in respect of which the appellant averred that the criticism of him was unjustified. In relation to the first he found (at paragraph 44) that although it was reasonable for the pursuer to have used a ⅜ inch diameter drill, the selection of the drill was not the principal matter which was significant in this part of the test; it was the size of the hole created by the drill, which, if filled with lead, would increase the weight of the club by the desired amount. The pursuer failed to achieve this result at the first attempt; and the clear reason for that was that he failed to drill the hole to the correct specification. He found that if the standard of a reasonably careful and competent golf repairer was to be applied to the pursuer's performance in drilling the first hole, his failure to measure that hole satisfactorily cannot be said to have passed that standard. In relation to the criticism of the pursuer that he had let the lead go hard while pouring it, the Lord Ordinary found that the criticism that he had not correctly performed an important part of the operation, pouring the lead into the hole, had a clear measure of justification. He also found that the circumstances under which the top part of the lead plug came away supported the position adopted by the defenders' examiner that the lead had been poured into the first hole in two movements and also that in the course of this operation the pursuer had allowed the lead to go hard, and to fall below the appropriate temperature. He found however that the third criticism made by the defenders was "not justified" for the reasons already disclosed above. He also noted, however, (in paragraph 47) that it had appeared from the evidence of Mr Barton in particular, and that of Mr Holland and Mr Harling, that the fact that the screws were proud constituted a significant part of the reasons which informed their decision to fail the pursuer.

[21] The Lord Ordinary concluded (paragraph 48):

"While there are therefore undoubtedly valid complaints made by the pursuer about the defenders' conduct in assessing his performance and the nature of the test which he was obliged to carry out, the pursuer has not in my opinion done enough in this case to demonstrate that but for the failures by the defenders in assessing his performance he would have passed the test. I accept that Mr Barton made mistakes on the question of the size of the drill to be used in the operation, that he made further blunders in marking and selecting exercises for the task, and that generally there were other mistakes in the course of the examination. I also discount the fact that the pursuer may have left screws proud of the plate. But on the other hand, his failure to drill the hole to a measured depth on two occasions, his failure to heat and pour the lead properly, and his failure to provide a dam to contain any excess lead, were significant failures in the context of this examination. I have therefore concluded that, on the basis of these departures from the manual alone, the pursuer would still, regrettably, have failed this part of the test. It seemed to me that these aberrations were of significance, and that they cannot be said to be consistent with the standards of a reasonably careful and competent golf club repairer. The evidence of Mr Barton and Mr Harling in particular in this respect seemed to me to be crucial, and while Mr Barton plainly made a number of errors, nonetheless his view that the kind of mistake admittedly made by the pursuer would have been sufficient to fail him carried convincing effect. While it is true that the pursuer achieved the desired result of an increase of four swing weights in the club, the evidence of that aspect of the case seemed to me to be quite unsatisfactory, and I concluded that it would be unsafe to draw too many conclusions from that fact that the pursuer, after a number of unconventional procedures, managed to hit on the correct weight".

[22] Before turning to the submissions that were made in this reclaiming motion, certain general observations can be made. It would appear from much of the Record, and from the Lord Ordinary's opinion, that the appellant's case was presented on the basis that it was enough for him to succeed if he proved that in the particular respects averred (which had been the subject of adverse comments) he had in fact met the standards expected, as such standards were assessed by the court. Little or no emphasis appears to have been placed on the need for the pursuer (given that the contractual term contended for was that he would be assessed "fairly and reasonably" and in accordance with a particular standard) to show that the decisions of the defenders' examiner(s), particularly in areas where a degree of judgement was required, were ones which no reasonable and fair examiner(s) applying the relevant standard could have made. More significantly, perhaps, for present purposes at least, there was, it seems, no obvious attempt made to prove that had the respondents' examiners assessed the appellant in accordance with the contractual term, he would have received marks in respect of each part of the relevant test which would have resulted in an overall pass for that test. In short, there was on Record, and in submission, little or no concentration on the specifics of the examination paper.

[23] Before this Court, counsel for the appellant, in a skilful submission, did not seek to challenge any of the primary findings of fact made by the Lord Ordinary, nor indeed did he challenge the Lord Ordinary's inability to make any finding in relation to the question of whether screws had been left proud on the club. He accepted that before the Lord Ordinary the appellant had sought to follow the broad approach to the question of liability and causation primarily foreshadowed on record. This had not concentrated on the specifics of the examination paper. The approach had been to suggest in essence that given what the appellant had done, he ought not to have attracted the adverse comments made by the examiners and ought not to have been failed. In some respects the Lord Ordinary had made findings favourable to the appellant. Insofar, however, as he had also found that the appellant had in certain respects fallen below the required standard and that as a result he would still have failed the relevant part of the test, the Lord Ordinary had erred by failing to follow through the full implications of that approach. In particular the Lord Ordinary should have found, in light of his primary findings and having regard to the evidence as a whole, that the appellant should nevertheless have been given 26 marks out of the available 30, or at least 21, if the respondents' examiners had assessed him in accordance with the contractual term, and he should therefore have found that the appellant would have passed.

[24] Counsel for the appellant noted, in particular, that the printed part of the examination paper divided the relevant test into various parts for marking purposes. His submissions concentrated on three of these parts. "Drilling hole" was, it was submitted, divided into five sections, one of these, for example, being "locating correct position". Five marks overall were available for this section. It was accepted in the evidence that Mr Barton had placed a contemporary handwritten tick against "locating correct position" and contemporary crosses against the remaining four sections. In these circumstances it could be inferred that one mark was available for each section. On the Lord Ordinary's primary findings one mark should therefore have been awarded for each of "locating correct position", "12mm (1/2 in) drill", "position and protection of club in vice" and "undercutting hole". The appellant should therefore have been awarded four marks as opposed to the one which he was given for this part. Similarly in relation to the part headed "Filling hole with lead", where similar inferences could be drawn that each described "section" attracted one mark out of the five available, the appellant should have been awarded one each for "care in pouring", "cooling", "tapping lead", and "removing excess". Therefore the appellant should have been awarded four marks for this part, as opposed to the two which he was given. Lastly, in relation to the part headed "Fitness of club for play", the appellant should have been awarded all ten marks available. It was clear, it was said, from the evidence of Mr Harling that this part covered four matters - security of the lead, proper replacement of the plate, the absence of damage (for example from incorrect positioning in the vice) and achievement of the desired swing weight. It was also clear from the evidence that the reason the appellant was marked down was the alleged absence of undercutting (leading it was said to a rattling of the club) and, perhaps more clearly, that certain of the screws were left proud of the sole plate. The former was not justified on the evidence. In relation to the latter, it was for the respondents, who had first raised the matter on Record, to prove that the appellant had indeed left certain screws proud, and in this the respondents had failed.

[25] It was accepted by counsel (and he submitted that all along it had been accepted) that the implied term in the contract required the assessment to be fair and reasonable and that there was, at least in theory, room for reasonable errors of fact and for an exercise of judgement on matters on which reasonable and fair examiners might differ. The critical factors in this case, however, were the Lord Ordinary's findings that the appellant had in fact done certain things which Mr Barton said he had not; and where the examiners were, or should have been, watching the appellant's every movement it was but a short step to say that no fair and reasonable examiner would have failed to see what the appellant had or had not done.

[26] On behalf of the respondents it was argued that the appellant should not now be permitted to develop his case in the way submitted. There was no Record for this new approach. If the respondents had understood that this was the case they faced their approach to the proof would have been different. Witnesses who were led would have been asked about the structure of the examination paper and specifically how it fell to be marked. Other witnesses, especially those responsible for setting the examination, might well have been led in relation to these matters. The Lord Ordinary had not been invited at any stage to follow this line. In any event, on such evidence as there was the appellant's approach could not succeed.

[27] In reaching our decision in this reclaiming motion we are prepared, albeit not without considerable hesitation, to address the arguments now presented on the appellant's behalf. It appears to us, although not clearly spelled out on Record (or in submission before the Lord Ordinary), that if the appellant truly sought to prove, as he averred, that had the respondents assessed his performance in the club repair examination fairly and reasonably and by the application of the standards of a careful and competent professional golf club repairer they would have awarded him a pass in the said examination, he was bound, in circumstances where the setting of the particular task was not questioned, to do that by reference to the specifics of the examination paper. In these circumstances his present approach could perhaps be described as at least a variation, modification or development of the case on Record. Further, having considered the evidence to which we were referred, it seems plain that insofar as there was evidence as to the detail of the examination paper, and as to the marking of the relevant task in it, it was given in answer to questions asked on behalf of the respondents of their own witnesses, in particular Mr Harling and Mr Barton. That we find difficult to square with the submission that the respondents could not, and did not, anticipate the potential relevance of these matters prior to the proof. While the position now sought to be advanced could and should have been presented to the Lord Ordinary, it would, we consider, be unduly harsh to the appellant (who did demonstrate a number of unsatisfactory features in the assessment of him) if he were not allowed, in the exercise of our discretion, to argue that position now. Insofar, however, as we are prepared to entertain the submissions made to us, we do so without, in any way, implying criticism of the Lord Ordinary, who, it seems to us, reasonably and carefully considered and answered the case as it was presented to him.

[28] The problem for the appellant, however, is that, no doubt because of the way matters were originally approached, there is simply insufficient evidence to entitle him to succeed on the basis now advanced. As regards the parts of the printed examination paper headed "Drilling hole" and "Filling hole with lead", the appellant's submission depended entirely on an inference being drawn from the terms of the paper itself (and from certain crosses and a tick placed in relation to "Drilling hole" by Mr Barton) that one mark was available for each matter detailed as forming that part of the test which was to be completed. Even if there was nothing else in the evidence to contradict that (and we consider, as discussed below, that there was), we would have been slow to draw that inference. It appears to us to be just as likely, looking at the paper alone, that what was set out was not intended to be a list of independent sections attracting specific marks, but rather simply a description of the various elements which the candidate required to complete for that part (which could be checked by the examiner at the time by the placing of crosses or ticks at the appropriate place). That is reinforced by consideration of a number of the other subheads. For example "correct use of swing weight balance" was a section where two marks were available although only one element was described. In addition one might expect that any fair and reasonable examiner would be expected to consider the position overall achieved; that failure in relation to some elements could be judged as more significant than others, and that even where all elements were completed some distinction could be drawn in the marking of candidates to reflect the relative quality of performance - particularly perhaps in matters of judgement, both for the candidate and examiner, such as the location of the correct position for the hole. The matter is further complicated in any case where, like the present, the candidate in fact drilled two holes.

[29] When the evidence is considered this matter is, in our view, put beyond doubt. Mr Harling and Mr Barton gave a number of answers which suggested that they did not consider that there was any simple direct correspondence between the number of elements described in any part of the task and the number of marks available. Mr Harling considered for example that it would be difficult to award any marks for "Drilling hole", or for "Filling hole with lead", if the hole was not in the event filled with lead. Mr Barton explained that when putting a tick or a cross this meant that certain things were done or not done. Notwithstanding that (and the fact that he ticked one element in the described task opposite "Drilling hole") he could not recall why he gave one mark for that part of the task - believing that he may have been kind to the appellant, given his overall performance of that part. Equally he thought that two marks had been given in relation to "Filling the hole with lead" for the appellant's care in pouring. The appellant himself accepted that if he had, for example, drilled through to the bottom of the club that that would have been "an instant fail", and as already noted, the Lord Ordinary - whose primary findings were not challenged in any way - found that in relation to drilling the hole, the selection of the drill was not the principal matter which was of significance; it was the size of the hole created by the drill. In relation to filling the hole with lead he also found that the appellant had "not correctly performed an important part of the operation", with apparently serious consequences.

[30] Further, in relation to the part headed "Drilling hole", one of the elements apparently clearly described was use of a 1/2 inch drill. Whereas the Lord Ordinary found that in accordance with the respondents' manual choice of the drill for the particular task of adding swing weight to a club was a matter of discretion for the ordinary competent repairer, it is not obvious that a candidate who used, as the appellant did, a ⅜ inch drill when the examination paper specified use of a 1/2 inch drill could not expect to be marked down (putting it broadly). This matter was not, it seems, clearly explored in the evidence, given the broad approach apparently adopted by the appellant. It was noticeable also that even on counsel's present approach he was unable to suggest what marks, on the evidence, had in fact been awarded in respect of which elements of the part headed "Filling hole with lead". In addition one part of "Drilling hole" was "locating correct position". This on any view required a judgement to be made by the examiner. It was plain that Mr Barton had certain reservations about the position selected by the appellant for the second hole (albeit he conceded it would have had little effect in practice on the flight of the ball off the club face). Despite evidence from others that the positioning of the second hole gave no cause for concern (which evidence was preferred by the Lord Ordinary) and some evidence from Mr Harling to the effect that the test was not concerned with how the ball would fly from the club face, there was, it seems to us, no evidence from which it could clearly be said that Mr Barton's concerns were the result of an unreasonable exercise of judgement and thus that the respondents could be said to have been in breach of contract if such concerns were reflected to some extent in the marks awarded.

[31] In relation to that part of the exam headed "Fitness of club for play", it does appear from his own evidence that one of Mr Barton's concerns related to the fact that, as he recalled it, the club rattled. Equally it seems reasonably clear (and was, as we understood it, accepted on behalf of the respondents before us) that the Lord Ordinary found, (at least by implication, although not expressly) that there was no rattling, given that he found that there had been undercutting (the absence of which was said by the respondents on Record to have been the cause of any such rattling). Beyond that, however, it does not appear to us that the evidence or the Lord Ordinary's findings (or lack of findings) assist the appellant. It seems clear (as the Lord Ordinary, and the appellant's counsel, accepted) that the principal concern of the examiners related to the fact that the club was, as Mr Barton said in evidence, presented at the end of the test with screws proud of the sole plate. If that was the case, the evidence clearly suggested that any reasonable examiner would have been entitled to regard that as serious; indeed it was put to Mr Barton by the appellant's counsel, and he agreed, that that would be "an automatic fail". Even Mr Harling thought that if that was the case, three or four marks would be deducted from the last part of the test "if everything else was done perfect". Since it is the appellant's case that the respondents could be said to have been in breach of contract insofar as he was marked down for having left screws proud when he did not, it was, we consider, for him to prove that. Although as a matter of history it appears that it was the respondents who first introduced averments that the appellant had been marked down on this matter, that does not in our view alter the fact that it was for the appellant to prove that they should not have done so. The position is, we think, no different from the other noted concerns which the appellant sought to prove (and accepted he had to prove) were unjustified, which comments Mr Barton said in evidence were merely intended to be a "brief résumé" of what had happened in the examination. Quite simply the pursuer, who undertook to prove that the respondents had marked the test in breach of contract, averred, and gave evidence, that he had not left screws proud, and in our view it was for him to prove that. He did not.

[32] In any event such evidence as there was fell short in our view of demonstrating that notwithstanding the accepted failures by the appellant in important respects, any fair and reasonable examiner would have awarded significantly above the five marks awarded, far less the ten claimed, in respect of "Fitness of club for play". It is, in our view, not at all clear from Mr Harling's evidence that in considering this part of the test only the four matters referred to by him (we think essentially as examples) fell to be considered. For example, he, upon whom the appellant appeared to place much reliance, plainly thought that if a hole was left half filled with lead, there was a real risk (unless it was plugged with some kind of filler), whether undercut or not, that under the pressure of play the lead would come loose, with serious effects on the suitability of the club for play. Once again, in relation to such matters as might be considered under this part of the examination, there was no evidence to suggest that a reasonable examiner required to consider only what had been done as opposed to how well it had been done, or that such an examiner could not ascribe a particular importance to parts of what had been done or not done.

[33] In all the circumstances we are not satisfied that in light of the findings made by the Lord Ordinary, and on the evidence led, it can be said that a fair and reasonable examiner would have awarded the appellant the 26 marks now claimed, or at least 21. In these circumstances the reclaiming motion falls to be refused.

[34] In these circumstances it is strictly unnecessary to consider the cross appeal argued by the respondents to the effect that the Lord Ordinary erred in relation to the assessment of damages. We record, however, for completeness that if we had had to deal with this argument we would not have found it to be in any way persuasive. Two broad submissions were advanced; neither, we sensed, with any great conviction. It was first submitted that the Lord Ordinary had erred in proceeding on the basis of an assessed annual difference between what the appellant could reasonably have expected to earn in the United Kingdom, had he been a member of the respondents, and what he has in fact been able to earn as an instructor of golf in the United States of America, where he has lived since about 1999. It was said that it was not clear on the evidence that he would not have moved to the USA in any event, regardless of whether he had passed the respondents' final exam. It is clear however that the whole tenor of the pursuer's evidence, consistent with his Record, was that had he passed he would have sought to make his way as a professional golfer based in the United Kingdom and that his move to the USA (for which he received some financial assistance from his parents) was part of a reasonable attempt to minimise his loss. Secondly, it was submitted that there was no proper basis in the evidence to entitle the Lord Ordinary to assess any figure for the estimated annual loss. We are, however, entirely satisfied, where the assessment of what the appellant could reasonably have expected to earn as a professional golfer in the United Kingdom was an inevitably uncertain exercise with a number of imponderables, that there was enough material in the evidence to entitle the Lord Ordinary reasonably to reach the conclusion he did.

 


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