EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Kingarth
Lord Reed
Lord Marnoch
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[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
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Pass Marks
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Mark
Awarded
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Initial and final dead and
swing weight checks: with and without
place. Plate Removal
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6
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6
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Drilling hole:
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Locating correct position
12mm (1/2¨) drill, hole depth 6mm (1/4¨), position and protection of club in
vice, undercutting hole
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5
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1
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Preparing hole to receive
lead:
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Dam and protection of holes
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2
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0
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Filling hole with lead:
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Checking temperature of
lead, care in pouring, cooling, tapping lead, removing excess
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5
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2
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Correct use of swing weight
balance
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2
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2
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Fitness of club for play
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10
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5
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TOTAL
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16"
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[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.