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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 129
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OPINION OF LORD WHEATLEY
in the cause
COLIN FRASER (AP)
Pursuer;
against
THE PROFESSIONAL
GOLFERS' ASSOCIATION LIMITED
Defender:
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Pursuer:
Sandison; Morton Fraser
Defenders: Jones, Solicitor Advocate; Brechin Tindal Oatts
25 August 2006
[1] The
pursuer has an address in Kirkcaldy but normally lives and works in the United
States of America as a golf instructor. The defenders are an association of
professional golfers ("the PGA") who regulate the professional playing of golf
in Scotland and
the United Kingdom
generally, and who have a registered office in Scotland. The defenders set the conditions under which
golfers in the United Kingdom
participate in the majority of professional golf tournaments, and are employed
as club professional golfers and teachers.
They also oversee the training and examination of candidates who wish to
become members of their association.
Although it is theoretically possible for persons who are not members of
the defenders to enter certain tournaments in the United Kingdom and abroad,
and to engage in teaching, it is also seen that the majority of golf clubs in
the United Kingdom and in particular those who employ full time golf
professionals, are accredited by the defenders, and only employ members of the PGA. Membership of the defenders' organisation is
widely recognised in the United Kingdom
and abroad as a benchmark qualification for professional golfers, and
non-members are placed at a significant disadvantage in competing for
employment and in entering significant tournaments. Although there are other tournament circuits
in the United Kingdom
and throughout the world in which, for example, Scottish golfers could
participate, these are more expensive and difficult to join, and do not enjoy
the same prestige or prize money as those organised by the PGA, in which in
effect only members of the PGA can complete. The defenders do not hold or recognise
tournaments held at a club which employed a non-member as its
professional. In addition, the
opportunities for those who wish to teach golf in Scotland
or the United Kingdom
but who are not PGA members are very restricted. Particularly for young aspiring professional
golfers in Scotland,
membership of the PGA is in effect essential to have any sort of career as a
playing professional, golf club professional or teacher.
[2] The
pursuer, who is now aged 34, began playing golf at the age of 11 and soon
demonstrated considerable promise as a golfer.
He entered local and national tournaments and achieved outstanding
success. He was Scottish boys under 16
champion in 1986 and 1987 and won further national tournaments in 1988 and
1989. He was runner up in the British
boys stoke play championship in 1989 and played in the home international
competitions between 1986 and 1988. He
played for Great Britain
and Ireland in
1988 and 1989. He decided that he wished
to pursue a professional career in golf and enrolled to qualify under the PGA
training programme so that he could become a member of the association. He underwent a probationary period of
six months which he completed successfully.
[3] In
applying for registration as a trainee, an applicant such as the pursuer on the
one hand, and the defenders on the other, agreed to be bound by a document produced
by the defenders and entitled Constitution and Regulations. This document formed a contract between
them. The document required, among 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 the passing of a final examination. The purpose of the three year course
is to instruct applicants in all the various aspects of a golf professional's
work, including teaching, the preparation and treatment of clubs, the running
of a golf club or shop, the business of being a golf professional and so
on. Applicants require to complete a log
book on what they did during their traineeship and submit that to the
defenders. Applicants are also given a
training manual which purports to provide instructions on all matters on which they
would be examined.
[4] Part
5 of the Constitutions and Regulations document contains a number of provisions
relating to the training and examination requirements imposed by the defenders
in terms of the contract. In particular,
Clause 7 of Part 5 provides inter
alia:
"(7.1) All matters of training shall be the
responsibility of the executive committee which shall review training methods
from time to time and prepare for circulation to members and Registered Trainees
any instructional information they consider necessary.
(7.2) The basis for training shall be the PGA
training manual.
(7.3) Training centres for Registered Trainees
shall be conducted at times considered appropriate by the executive
committee. The conduct of such training
courses shall be in the hands of the training committee who shall prepare and
carry out the programme and appoint instructors."
Further, Clause 1.5 of
Part 5 provides in part:
"A Registered Trainee
can remain in registration for a maximum period of four years. Any Registered Trainee who fails to become
eligible for final examination at the PGA
Training School before the period
of four years has expired will be removed from Registration and shall not
be allowed to re-register at any time in the future unless otherwise decided by
the executive committee ...."
Clause 9.1 of Part 5 provides
that:
"In order to
become eligible for election to membership of the association a Registered Trainee
must pass all elements of a final examination at the PGA training centre."
Clause 14 of Part 5 provides
in part:
"(14.1) A Registered Trainee is eligible for election
to membership when he has been registered for the minimum period of
three years, has passed the final examination at the PGA training school
and is in a position to fulfil the requirements of membership. ...
(14.4) A Registered Trainee cannot take employment
as a PGA club professional until such time as he satisfactorily passes the
association's examination and has been elected to membership."
Clause 10.1 provides in part:
"If a Registered
Trainee fails one or more subjects at final examination the following
conditions will apply:
(10.1.1)
A 'holding period' of two years from the date of the
first examination attempt will be introduced during which two further
opportunities for re-examination will be allowed, one each consecutive year; ...
(10.1.3) During all or part of the 'holding period'
suspension of playing privileges will be enforced. ....
[5] The
pursuer attended all training courses and satisfactorily completed all study
and training requirements of the defenders.
He therefore became entitled to sit the defenders' final
examination. He was required as part of
the 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, and again failed. This meant that membership of the
Professional Golf Association was permanently unavailable to the pursuer.
[6] The
practical examination which the pursuer was asked to undergo on 29 November 1995 consisted of
four separate chapters, and the pursuer was supposed to do one exercise from
each of these chapters. It was essential
that he pass all parts of the examination.
He failed in one of the chapters and passed the others. The part of the practical examination test
paper which the pursuer failed was in respect of a requirement that he add four
swing weights to a wooden headed driver, the alterations to be carried out to
the satisfaction of the player who owned the club. The club was formally described as a woman's
number 2 driver. The pursuer himself
supplied the club on which this operation was to be carried out, but the
particular task which the pursuer required to perform was chosen from the range
available at the time of the examination by the members of the PGA who carried
out the examination. The test which the
pursuer was required to carry out was based on detailed guidance contained
within the training manual. However, in
addition, the defenders maintained that supplementary guidance on various
aspects of the operation which required to be carried out was given to trainees
during the various courses they required to attend.
[7] In
practice the pursuer was required to undertake a series of practical steps in
order to carry out this particular test.
First of all the club must be weighed.
Club weights are graded at the heaviest at A1 down to A9, thereafter
from B1 to B9 and so on. Club weights
are measured on a weight balance which converts dead weights to swing weight
(which is the value of the weight of the club when swung). Thereafter the sole plate, a metal plate
which covers the base of the club and which is secured by screws, is removed. The club is then weighed again and placed
securely in a protected clamp or vice.
In order to increase the weight of the club, a hole requires to be
drilled in the wooden base of the club which is then filled with the
appropriate amount of lead. It is
important that the hole is drilled in the correct dimensions to accommodate the
correct amount of lead which will add the required amount of additional weight
in accordance with the manual's guideline dimensions. Once the hole has been drilled to the correct
depth, and at the correct diameter, it is important that the hole is
undercut. This is achieved by drilling
smaller diameter holes at an angle in the base of the hole to receive the lead,
which will allow for additional support and strength when the lead is poured
into the hole.
[8] After
the hole has been drilled to the correct dimensions, it is then filled with
molten lead. The lead is heated within a
ladle, and it is recommended that the heating process is carried out by heating
the ladle which contains 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 is that heating the ladle
will result in the temperature of the molten lead and the ladle itself will be
similar, so that the molten lead will flow more evenly out of the ladle and
into the hole. This is explained in the
manual. It is also important that the lead
is at the correct temperature before being poured from the ladle into the
hole. That the temperature is correct is
gauged in the first instance by dipping a piece of wood into the molten lead;
if it smokes the metal is too hot and might burn the wood into which it was
poured. However, if the molten lead
adheres to the piece of wood, the lead is at the correct temperature to be
poured into the hole. Again, all of this
information is contained in the manual.
[9] It
is then considered important that the lead is poured into the hole on
one continuous movement. The hole
should be protected by the provision of a dam of plasticine or similar to
prevent lead spilling on to the base of the club. The four screw holes should also be
protected. Once the hole is filled with
lead, the surface of the lead is 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 is then filed or
chiselled until it is flush with the surrounding wood. The club is then weighed once more, and the
sole plate is replaced and screwed back into position. The screws must then be flush with the plate,
and once the plate is replaced the club is again weighed. The purpose of these re-weighings is to
confirm that the correct additional swing weights have been introduced to the
clubs.
[10] What in fact happened when the pursuer carried out this test,
according to his version of events, was as follows. He weighed the club and then removed the sole
plate. He again weighed the club. He noticed that there was a large unfilled
cavity in the base of the club. He
considered that such a cavity may have been left there by the manufacturers, or
as a result of an earlier alteration which removed a weight from the
cavity. The pursuer then drilled a hole
in the base of the club in more or less the correct position between the two
screw holes towards the rear of the club.
In doing so he used a 3/4 inch drill, although he was aware that the
manual recommended a 1/2 inch diameter drill. The manual also recommended that if a 1/2 inch
drill was used, the depth of the drill should be 1/4 of an inch. The pursuer used a 3/4 inch diameter drill
because that was the size of drill he had normally worked with in the past and
which his experience indicated was most suitable for the job. He was however unable to say to what depth he
drilled the hole. He failed to measure
it in any way, although the means of measuring the depth, such as marking the
drill or using a measuring device, were available. He then undercut the hole by drilling two
holes at an angle from the bottom of the hole.
[11] After positioning the club in a clamp, he then heated lead in a
ladle with a Bunsen burner, and tested it with a piece of wood, which smoked,
suggesting that the lead was slightly too hot.
He waited for a short while to allow the lead to cool, again apparently
relying on his experience to judge the time required, and then poured the lead
into the hole. He claimed that this was
done in one continuous movement. He believed that he had protected the
hole with a dam of plasticine, although he did not protect the screw holes. He tapped the lead down in the hole with a
ball hammer and attempted to chisel off the surplus lead in order to make the
lead plug flush with the base of the club.
As he did so, a part of the lead plug broke off leaving the hole only
about half full of lead. The surface of
the lead left in the hole was smooth and slightly convex, with a small rough
additional piece of lead on the surface at about 6 o'clock. The pursuer subsequently weighed the club in
this condition and found that he had added two swing weights to the weight
of the club.
[12] The pursuer decided at that point that he could not refill the
remaining part of the hole as he did not believe that it would fuse with the
lead that remained. He also decided not
to drill the remaining lead out of the first hole, because he considered that that
would be too dangerous, having regard to the size of the hole, and also because
he feared it would weaken the club further.
He therefore drilled a second hole to the shaft side of the cavity
between the four screw holes securing the sole plate. He again used a 3/8 inch drill, and it
appears that he drilled it to a depth of 3/8 inches. He did not however check the depth of the
hole at that time. He then heated some
lead as before and poured it into the hole.
He did not provide any dam protection for the second hole, and left the
lead slightly proud of the base of the surrounding wood. It is unclear whether he then filed or
chiselled off the surface. He then
weighed the club and found that it now indicated an increase in weight by
four club weights. He replaced the
sole plate and tightened the screws, claiming to leave them flush with the
plate. He finally re-weighed the club.
[13] The examination was conducted by two members of the PGA,
Brian Barton, a golf professional attached to a golf club in England
where he has been for many years and Kenneth Holland who is also a golf
professional with long experience.
Evidence was also given by Mr Harling, who had been the chief
examiner for the defenders for many years until his retirement, and who gave
general testimony about the nature of the defenders' examinations over the
years, particularly in the repair and treatment of wooden golf clubs.
[14] The defenders' version of what happened at the pursuer's
examination was as follows. The pursuer
weighed the club before and after removing the sole plate, and was given full
marks for that. He then drilled the
first hole in approximately the right place, but used, according to the principal
examiner, the wrong size of drill. He
failed to check the depth of the first hole.
He failed to undercut. He then
proceeded to heat the lead in the ladle in the wrong way by heating it with a
blow torch applied directly to the lead rather than heating the ladle which contained
it. He then failed properly to test the
temperature of the lead before pouring it into the hole. While he may have dipped a piece of wood into
the lead and observed that it smoked slightly, he failed to check that the lead
adhered to the wood, which was a sign that it was at the correct
temperature. He failed to provide a dome
of plasticine or blue tack round the hole and to protect the four screw
holes, either by the same method or by inserting golf tees into them. He failed to pour the lead into the hole in
one continuous movement, but did so in two stages.
[15] The examiners then observed that the pursuer drilled a second
hole, again with the same 3/8 inch drill.
They considered that the preferred option would have been to drill the
lead out of the first hole and to start again.
The second hole was drilled to the front of the club, and the examiners
were of the view that while this was not necessarily a mistake, the hole may
not have been in the best position.
Thereafter the pursuer failed to provide a dam either for the second
hole or the screw holes. He appeared to
have heated the lead and to have filled the hole satisfactorily. He then weighed the club and found that the
weight had been increased by the stipulated four club swing weights. He replaced the sole plate, but left the two
front screws proud of the plate, which in the examiner's view meant that the
club was not in a playable condition. The
examiners concluded that in all the circumstances the pursuer had failed the
examination.
[16] The pursuer appealed the examiners' decision to fail him on
this part of the test. In accordance
with the defenders' practice, the club which he had brought to the examination
was retained by them in a storeroom, the location of which was not identified. At some unspecified point in time thereafter,
the club was sent to the defenders' headquarters at The Belfry, where the
assistant chief executive, Norman Fletcher, stored it in a cupboard. Thereafter, on some unknown date, the club
was examined and x-rayed, and it seems probable that the sole plate was
removed. It may then have been sent some
considerable time later, to the defenders' agents' office in Glasgow. In any event, it was arranged that what was
described as an independent examination of the club should be undertaken. This was carried out by Mr Donnachie,
who is an extremely experienced golf club manufacturer, and who was also a
friend of the pursuer's father, who had asked him to undertake an examination
of the club. Mr Donnachie conducted
his examination in Auchterlonie's golf shop in St Andrew's, in November
2005.
[17] In the course of his examination, Mr Donnachie removed the
four screws from the sole plate, having first observed that the back
two screws were proud of the plate, but that the front two screws, which
had earlier been reported as being proud of the plate, were now flush with the
rest of the sole of the club. He noted
that the large cavity in the centre of the base of the club which the pursuer
had said was empty, was full of lead, and covered by a thin sheet of resin such
as was used by manufacturers in weighting a club. He then removed the plug of lead from the
first hole which the pursuer had drilled and found that that hole was
1/4 inch deep. He was of the view that
the first plug of lead had been undercut from his observations of removing the
plug from the hole. He left the lead in
the second hole where it was, but in the witness box, on looking at some X rays
which had been taken some time later of the club, concluded that it too had
been undercut.
[18] The result of the apparently straightforward statements of two
differing views from the pursuer and the defenders about what had happened
during the course of the examination was however considerably more confused
than a simple factual dispute might suggest.
Some of the difficulties which the defenders' principal witnesses experienced
were no doubt partly attributable to the fact that Mr Barton and
Mr Holland in particular were being asked to remember events which had
taken place some ten years earlier, concerning an occasion which no doubt
was only one of a number of similar examinations which they conducted over the
years. But there were significant problems
with the testimony of all of the witnesses in coming to a clear view on what
went on during the pursuer's examination.
On both sides there was an element which suggested that recollection was
based on what the witnesses thought must have happened as opposed to being able
to remember what in fact had happened. This
is understandable, but makes accurate discovery of what really took place somewhat
difficult. What follows is in my view
the most probable resolution of the issues raised by the competing accounts of
what happened during the crucial test undertaken by the pursuer.
[19] The pursuer having brought a club to the examination was asked
to increase the weight of that club by what is described as four swing
weights. He began by weighing the club
in its original state. He did this
properly, and that is agreed. Then, in
terms of the manual, the defenders offered advice as to how four swing
weights should be added to a club in that the hole that was to be drilled
should be 1/2 inch in diameter by 1/4 inch deep. This clearly suggests that a hole drilled of
those dimensions, when suitably undercut and filled with lead, would produce
the desired additional weights. However,
the manual also makes it clear that the dimensions so provided are for guidance
only, and that regard must be had to all the circumstances in deciding what
particular drill should be used, and also presumably to what depth. Accordingly, the manual explicitly opens up
the possibility that in 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 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 3/8 inch in diameter when
deciding to drill the first hole. The
club in question was a woman's number 2 driver, which is smaller than many
other wooden driving clubs, and in that circumstance a smaller hole might be
preferable. However, Mr Barton, in
considering the guidance offered by the manual on the dimensions required to
provide the various swing weights increases, formed a very different view on
what these measurements involved from anyone else in the case. The manual suggests that in order to add four
swing weights to a club, the hole to be filled should be "1/2 inch by 1/4
inch". Everyone else in the case assumed
that this meant a hole 1/2 inch in diameter and 1/4 inch deep. This view was endorsed by the terms of the
examination paper (number 6/4 of process) which indicated that the drill size
should be 1/2 inch. Mr Barton was
however adamant that in order to add four swing weights, the diameter of
the hole should be 1/4 inch and the depth 1/2 inch; that is to say that on his reading of the
manual, the first figure given indicated the depth of the hole to be drilled,
and the second figure indicated the size of the drill to be used. It is clear that Mr Barton was, in this
instance, completely wrong. Whether this
was an unfortunate mistake brought about by the length of time since the
examination, or whether, as I believe, it is a misapprehension under which Mr
Barton has laboured all along, was not fully resolved on the evidence. But what is of significance is that when
Mr Barton noted that the pursuer had used what he considered to be the
wrong size of drill, he immediately marked the pursuer down, before observing
any other part of the examination. He
was therefore unwilling to accept the advice of the manual which clearly
allowed some measure of discretion to the examinee; the import of Mr Barton's evidence was
that he would exclude any form of discretion.
This was the first major area, and perhaps the most important, of
discrepancy between Mr Barton and Mr Holland. The net result is that, in this
part of the examination, the defenders' decision to award no marks to the
pursuer was unreasonable.
[20] The next step in the process was that, having selected a suitable
drill, the pursuer should then drill the hole to the correct depth. The pursuer undoubtedly did not do so. The reason why this can be stated is that
after the pursuer had drilled his first hole with a diameter of 3/8 inch, to a
depth which he did not measure, and filled the resultant hole with lead, he
then weighed the club and discovered that it had been increased by two swing
weights only. This meant that, if the
tables in the manual are correct, the depth of the hole drilled by the pursuer
of 3/8 inch in diameter could only have been about 1/4 inch. Unfortunately, as the pursuer did not measure
the depth of the hole (although the means of doing so were readily and easily
available) it was not possible for him to offer any competing view as to what
depth the hole might be. In particular,
it should be noted, that if the pursuer was relying entirely on his experience
to achieve the correct additional weight in drilling the hole, then even on his
own evidence he failed this part of the test.
[21] Having drilled the first hole as he described, the pursuer
should then have prepared to fill it with molten lead. The first step in this part of the process
was to protect the area surrounding the hole, and the empty screw holes, from
any accidental spillage of the lead onto the bottom of the club, by making a
dam of plasticine or similar substance around the hole, and inserting something
such as a golf tee into the empty screw holes as a further safety
precaution. The pursuer claimed that he
was "95%" sure that he had protected the first hole, but was less sure about
the screw holes which were perhaps less important. The defenders' examiners were of the view
that he had not protected any of these holes.
[22] As this is the first substantial point of fact on which the
parties were in disagreement, it is perhaps useful to examine in more detail
the nature of the evidence of the pursuer on the one hand, and that of Mr Barton
and Mr Holland on the other.
[23] The pursuer was clearly an honest witness. He was understandably not fully reliable because
of the passage of time, but he made no attempt to dissemble when opportunities
to do so arose. Indeed, the most telling
evidence against his case came from himself.
He was prepared to acknowledge that he had on occasions departed from
the recommendations provided in the manual, and in addition he implicitly
accepted that he may have made errors in the course of the test.
[24] Mr Holland began by indicating that he had examined the pursuer
on a previous occasion on the question of club treatment and that he had failed
him; he accordingly asked Mr Barton if he would undertake the principal role in
the pursuer's examination, to which Mr Barton agreed. It subsequently transpired that Mr Barton had
also examined the pursuer on an earlier occasion, subsequent to the examination
which Mr Holland had conducted on golf club repairs, and had also failed him on
this subject. He however did not recall
this. Mr Holland suggested at the
beginning of his evidence that although the examinees were split up between
himself and Mr Barton, both examiners were responsible for marking each of the
candidates. However, as the
cross-examination of his evidence progressed and difficulties appeared in the
documentary evidence and the written reports of the examination, Mr Holland's
position shifted significantly and eventually he conceded that he had had
virtually nothing to do with the observation and marking of the pursuer's
examination. Examples of the
difficulties which prompted his change of position included a failure to add up
the score correctly in two areas, and a requirement imposed by Mr Barton
on the pursuer that he should do two examinations from one part of the
test, when he should have been asked to perform only one task from each part of
the test. (It should be noted that these
failures do not form a specific part of the pursuer's grounds of complaint
against the defenders.) Mr Holland's evidence
therefore was of little use in supporting the defenders' case.
[25] As Mr Barton's evidence developed, it became clear that he was
relying on the various written notes which he made at the time of the
examination, and just after. This is not
in the least surprising in view of the length of time which has elapsed since
the test took place. Mr Barton's notes
consisted of markings which he made on the test paper itself as the test
progressed, his summary of the test at the end of that paper, and handwritten
notes which he made in his notebook just after he had decided that the pursuer
had failed the examination. There were
significant difficulties about Mr Barton's evidence and the notes which he
made. However, I was inclined to the
view that some value should be placed on his recollection, as I shall explain
later.
[26] To return to the test, the pursuer, having selected a drill
with a diameter of ⅜ of an inch to drill the first hole, then required,
as matters transpired, to drill a hole to a depth of about ⅜ of an
inch in order that the hole would provide a sufficient cubic capacity to
accommodate the necessary amount of lead to increase the weight of the club by
the desired amount. This is on the basis
that the manual provides that a hole of 1/2 inch in diameter by one 1/4 of an
inch deep would add four swing weights and therefore a hole of a diameter of
⅜ of an inch would have to be ⅜ of an inch deep to
provide the same approximate cubic capacity.
What appears to be accepted however, is that the pursuer only drilled a
hole one 1/4 of an inch deep because, as indicated above, when he weighed the
club afterwards and before doing any further operations on it, it was shown to
be only two club weights heavier when the first hole was full of lead. This measurement was confirmed by
Mr Donnachie.
[27] Having drilled the hole, the pursuer then required to undercut
it. The pursuer said he did undercut the
hole he had drilled in respect of the first hole. Mr Barton noted that he had not done so. Mr Donnachie was satisfied that when in
2001 he removed the lead plug from the first hole, it had been undercut. Whether the undercut was sufficient is not an
issue; on record and at proof the
dispute between the parties was whether it had been done or not. There is no issue that it had been done to a
suitable standard, other than the pursuer's claim that he had done it
properly. His claim that he had done so
in the case of the first hole was in my view adequately confirmed by
Mr Donnachie. There was also evidence
from the x-rays which might have suggested that there was some indication of an
undercut in respect of each of the holes drilled by the pursuer, but it was not
possible to confirm that evidence and indeed the x-rays may on another view
have suggested that undercutting had not taken place at all. There was no evidence about who had taken the
x-rays, for what purpose, or when they were taken. There was no-one present to speak to what the
x-rays meant. The only thing that might
be inferred reasonably from the x-rays was that at the time they were taken
(which was presumably after they had been received into the defenders' care and
before Mr Donnachie's examination), the sole plate had been removed. In the circumstances I hold that the pursuer
did undercut the first hole which he drilled, and that the defenders were wrong
to suggest that he had not done so, and to mark down his score accordingly.
[28] The next step which the pursuer had to undertake in terms of
the examination was the damming of the hole.
The pursuer was 95% certain that he had put plasticine round the
hole. Mr Barton, with reference to
the notes referred to above, was certain that he had not. In this aspect of the evidence, the pursuer
was somewhat hesitant and I was inclined to the view that he did not dam the
first drill hole with plasticine. He accepted
that he had not protected the screw holes, and that he failed to provide
protection for the second hole.
[29] Thereafter, the pursuer's task was to place the golf club in a
vice in an appropriate manner.
Mr Barton maintained that the pursuer had put the shaft of the club
into the vice, and that as a result his ability to treat and manipulate the
golf club satisfactorily was adversely affected. What should have happened was that the head
of the club be secured in the vice. If
the shaft of the club is secured in the vice that would allow the head, when it
is to be worked on, to be shaken about.
I did not accept Mr Barton's evidence on this matter. This clearly would be such a significant
blunder that it would be noted in terms in his report, and the pursuer was
adamant that he had not done so. This
matter, however, was not critical in the assessment of whether the pursuer had
passed the test, but was merely ancillary in character.
[30] The pursuer then had to heat the lead. Mr Barton said that he had failed to
heat and test the temperature of the lead properly. What the pursuer ought to have done was to
heat the ladle from which the lead was to be poured, so that the lead and the
ladle would have a uniform degree of heat and as a consequence there would be
no difficulty in the interface between the lead and the ladle when the lead
came to be poured out. Should the lead
be heated directly within the ladle by means of a blow torch, there could be a
discrepancy between the heat of the ladle and that of the lead, and that might
result in an uneven flow when the lead came to be poured out of the ladle. I gathered from the pursuer's evidence that
he heated the lead directly by means of a blow torch. This did not appear to be of particular
significance in itself and is not mentioned in the manual. What seemed to be of considerably more
significance was that the lead should be at the correct temperature when it was
poured into the hole in the club.
[31] The method of testing the temperature of the lead was first to
put a small piece of wood into it; if
the wood smoked, the lead was too hot.
The correct temperature was reached when the lead adhered to the wood. The pursuer tested the temperature initially
by inserting a small piece of wood, which he found smoked slightly. He therefore waited for a short time until
his experience told him that the lead was at the correct temperature. He then poured the lead into the hole. In this respect the pursuer did not carry out
the operation in accordance with the manual, and in particular he did not check
to see that the lead adhered to the piece of wood in order to satisfy himself
that it was at the proper temperature when he came to pour the lead into the
hole.
[32] In pouring the lead into the hole, the pursuer maintained that
he did so in one continuous pouring movement;
Mr Barton maintained that he did it in two separate movements. Although Mr Barton's recollection was in
principle flawed, the view that the pursuer did pour the lead in two separate
movements was given significant support from what happened next. After he had filled the lead into the hole,
the pursuer properly and correctly used a ball hammer to consolidate the
lead. This is carried out by tapping the
top of the lead with the hammer. The exercise has two functions, firstly to
force the lead into the undercut and secondly to remove any air bubbles. There was evidence from Mr Harling and
Mr Holland, which I accepted, that any air bubbles formed in the course of
pouring lead into a hole of this kind would be minuscule. In addition, if any air bubbles had formed within
the lead, this would have been because the temperature of the lead was too
high.
[33] The pursuer therefore had to chisel away the excess lead at the
top of the hole. When he did so part of
the lead plug came away. What was left
was smooth and slightly convex, with a small, rough raised residue of metal at
one edge. The pursuer's account of this
was that the top part of the lead must have come off because there was an air
bubble in the middle of the plug. I
consider that this was most unlikely;
the evidence was that air bubbles in this situation would be very small,
and the pursuer had correctly used the ball hammer to exclude such bubbles
remaining within the lead. In addition, the
smooth surface of what was left within the hole was more consistent with two
separate pourings of the lead; the
evidence suggested that at different temperatures lead would not adhere to
itself. In the circumstance, the obvious
conclusion seemed to me to be that the lead had been poured in two separate
movements; that the second pour had only
marginally linked with the lower and earlier pour, and that when the pursuer
applied the chisel to file off any excess lead, the second part of the plug
simply snapped off and came away. While
the pouring of the lead in two separate movements was perhaps self evidently
wrong, the manual is silent on this point.
Nonetheless, two conclusions fall to be drawn in respect of this part of
the test; firstly that the pursuer
failed to check the temperature of the lead before pouring it into the hole,
and secondly that he failed to fill the hole properly.
[34] With part of the lead removed from the first hole, the pursuer
then decided to drill a second hole of the same diameter. Both Mr Barton and Mr Holland were of the
view that the preferred course of action was to drill out the lead left in the
hole and start again. However, opinion
did not appear to be fully settled on this matter. It was clear from the evidence of Mr Mackay,
a PGA professional, that second holes were sometimes drilled in a variety of
circumstances in operations of this kind, and I considered that in deciding to
drill a second hole the pursuer was exercising a reasonable choice. Further in selecting a position clear and to
the side of the screws, the pursuer's choice was also reasonable. The available space was very limited, and
there appeared to be no substantive criticism of his choice. The pursuer drilled the second hole, failed
to protect it by providing a dam of plasticine, heated the lead satisfactorily,
and filled the hole. When the club was
weighed, it was found to have added four swing weights at the end of the entire
operation; in other words it appears
that the second hole drilled by the pursuer and filled by lead added a further
two swing weights.
[35] The pursuer then replaced the sole plate. According to Mr Barton, one of the front
screws was proud of the plate, which was an unacceptable feature and would
justify a rejection of the club by the customer. Mr Holland also thought that the two
front screws were proud. The pursuer
denied this. The true position was
difficult to ascertain and complicated by the fact that when, four years later,
the club was presented for examination to Mr Donnachie, the two rear
screws were raised proud of the plate.
The reasons for this were obscure.
There was evidence of x-ray plates which I was asked to look at in the course
of the evidence on the question of undercutting, from which it was seen that the
sole plate had at the time of the x-ray been removed. Accordingly it seemed plain that while the
club was in custody of the defenders its condition had been altered. What this meant was difficult to say. Further, the reference in Mr Barton's
notes to the screws being proud of the plate was clearly added at a different
time and in a different pen. In the
circumstances I considered that the evidence on this matter was unsatisfactory,
and that no conclusions should be drawn from it.
[36] It follows from all of this that the exercise which the pursuer
carried out in respect of this examination was of mixed merit. He correctly weighed the club. He located the club in a vice, (although he
may not have suitably protected it). He chose
a drill of a diameter which should not, in itself, have caused any
comment. He failed to measure the depth
of the first hole, which was always likely to mean that that first hole was wrong. He failed to provide a dam for the first
hole. He failed to check the temperature
of the lead properly. He failed to fill
the hole in one movement and this, together with temperature of the lead,
caused the upper half of the plug to come out.
He drilled the second hole with a drill which should have been of an
acceptable diameter. He failed to
measure the depth of the second hole, but used his experience and judgment and
came up with, as it happens, the correct weight at the end of the whole
exercise. It is, I think, necessary to
say that this appears to have been a matter of luck rather than judgment. He undercut both holes. He may or may not have failed to screw at
least one screw hole flush down to the plate.
[37] The examiners also get a mixed report. Mr Holland eventually repudiated all
direct knowledge of Mr Barton's findings.
Mr Barton was in error in his understanding that the description of
the appropriate dimensions given in the manual for the purposes of adding four
swing weights was quarter of an inch in diameter and half an inch deep. It was clearly the other way round. That Mr Barton should be able to labour
under a fundamental misconception was unfortunate. As indicated above, it may be that he merely
made a mistake, although he was quite unequivocal in his evidence. It is more likely, as I have suggested, that he
was simply wrong. He was therefore
doubly wrong in automatically marking the pursuer down for his supposed wrong
choice of drill. He added up two sets of
marks wrongly. He required the pursuer
to do two tests from one section of the exam when he should only have been
required to do one from each section. He
was not, in my view confidently able to remember all of what the pursuer was
said to have done wrong in the course of the test. For example, I do not know how he could claim
to have been certain that the pursuer had not undercut the first hole. But this does not mean that I consider him to
be a wholly unsatisfactory witness. As
he himself pointed out, with some justification, this was a practical
examination and the notations he had made in the exam paper itself were merely
reminders jotted down at the time. Also
he appears to have had no particular training in conducting examinations. The strong impression I got from the evidence
was that the defenders simply nominated examiners from the ranks of golf
professionals whom they regarded as honest, reliable and reputable. But there appears to have been little effort
to see that all the examiners so appointed were applying the same understanding,
interpretation and application of the manual in their various
examinations. That such differences
existed was obvious; why individual
examiners should be allowed to bear the principal responsibility for
interpreting the manual in their own way appeared less clear. But undoubtedly there were discrepancies and
blunders by the defenders' representatives in conducting the examination, as
well as mistakes made by the pursuer.
[38] Having come to a general view of the facts, I now require to
look at the pursuer's case as pled on record.
The pursuer's case is in essence one of breach of contract. The express contract between the pursuer and
defenders is found in the defenders Constitution and Regulations document,
which the pursuer accepted when he registered with the defenders as a
trainee. The defenders are of course
likewise bound by the terms of this document.
In addition to what is therein contained as the express terms of the
contract, the pursuer maintains that there was also a breach of an implied term
of the agreement between himself and the defenders, to the effect that the
defenders would assess his performance in the club repair examination fairly
and reasonably and by reference to the standards of a careful and competent
golf repairer.
[39] In his initial submission, Mr Sanderson, counsel for the
pursuer, had assumed that the implication of this term into the contract as he
contended for had already been dealt with.
In the relevancy debate in the Outer House, Lord Philip had
considered the defenders' submission that the pursuer's averments in respect of
the implication of contractual terms were irrelevant. The pursuer, it was said, had failed to aver
why the implied term described was necessary to make the agreement work. But Lord Philip concluded that an
implied term to the effect that in conducting the club repair examination the
defenders would assess the pursuer's performance fairly and reasonably, and by
the application of the standards of a careful and competent golf club repairer,
was a condition which in the context of the contract every reasonable trainee
would demand for his own protection, and which no reasonable professional body
such as the defenders would refuse to accede to. In coming to this view, Lord Philip referred
to William Martin & Co v Mills Brothers & Co 1907 SC 1211. When Lord Philips' Opinion was
appealed, the Inner House in essence confirmed that the implied term as
contended for by the pursuer was one which in the circumstances of the present
contract was relevantly and sufficiently pled.
In the course of his argument, Mr Jones, solicitor advocate for the
defender, pointed out that, following the appeal, a proof before answer at
large had been allowed and this meant that the defenders could still argue that
the implied term contended for by the pursuer was not part of the
contract. While it may seem odd that the
defenders should wish to dispute that they had an obligation to assess the
pursuer's performance fairly and reasonably and by the application of the
standards of a careful and competent golf club repairer, Mr Jones further
argued in this respect that there had been no evidence led regarding why such
an implied term was necessary to give efficacy to the agreement, or why such a
term was required to complete the agreement, nor had there been any evidence on
the parties' intentions in the matter. He
submitted that it was necessary to distinguish the business efficacy test from
that of the presumed intention of the parties (McBryde on Contract, 2nd Ed, para, 9.72). To meet the business efficacy test the
implied term must be reasonable and necessary for the implementation of the
contract, but, he maintained, no evidence had been led in support of these
claims. It had not been shown that the
contract was unworkable without the term (Thomson
v Thomas Muir (Waste Management Ltd)
1995 SLT 403). In these circumstances
the pursuer had no contractual basis for his claim. In other words, the defender submitted that
while there may be circumstances in which an implied term might be available in
a contract such as existed between the pursuer and defenders, there was no
evidence in the present case which suggested that it had been implied
here.
[40] I did not accept the defenders' submissions in this
respect. I think Mr Jones was fully
entitled to raise the argument; while in
earlier proceedings in this case the court clearly recognised that the implied
term in the contract contended for by the pursuer was both relevant and
sufficiently pled, it is of course an entirely separate matter that this
implied term should be shown on the evidence to have existed in practice. But in my view the entire burden of the
evidence in this case was to the effect that the defenders accepted the implied
term as proposed by the pursuer. The
evidence of Mr Barton and Mr Holland was plainly to the effect that
they should assess the pursuer's performance fairly and reasonably and by the
applications of the standards of a careful and competent golf club repairer. They repeatedly emphasised their desire to
conduct the test in this way. It was a clear
inference from all the evidence in the case that the incorporation of such
standards into the contractual relationship between the pursuer and defenders
was essential to the purpose of the contract.
The suggestion that such a term would not be incorporated into the
contract between the parties would in my view make the contract entirely
unworkable, and allow the defenders to operate the agreement between themselves
and the pursuer in any frivolous or capricious way they thought appropriate. Especially from the defenders' point of view,
it would seem quite incongruous to accept that they could maintain their
reputation and standards if the examination which they set for those who wish
to join their association should not be conducted fairly and reasonably and to
a relevant standard. Failure to imply
this sort of condition in the contract would deprive the exercise of any
business efficacy and result in the test for membership becoming
valueless. I therefore infer from the
evidence as a whole that the implied term in the contract contended for by the
pursuer was both necessary to give efficacy and to complete the agreement, and
was plainly implied into the parties' intentions. I am accordingly satisfied that it was an
implied term of the contract that the defenders would assess the pursuer's
performance in this test fairly and reasonably and by the application of the
standards of a reasonably competent golf repairer.
[41] The main question, however, was whether the defenders were in
breach of this implied term of the contract.
The first submission by the defenders in this aspect of the case was
that they were not responsible for the actions of their examiners, and that
there were no averments importing vicarious responsibility to the defenders for
the actions of those examiners. This was
in my view a somewhat startling proposition;
throughout the pleadings the defenders acknowledge that the examination
was theirs, and there was hitherto no suggestion that the examiners were not
acting on behalf of the defenders, or indeed, as the defenders representatives,
apart from a simple denial in the pleadings.
The examiners were members of the Professional Golfers'
Association; it was perfectly clear from
the pleadings and particularly from the evidence that Mr Barton and
Mr Holland were conducting the examination for and on behalf of the
defenders. The defenders acted on the
findings of the examiners in refusing to admit the pursuer to membership of
their organisation. I have no doubt that
Messrs Barton and Holland would
have been astonished to discover, in conducting their examination, that the
defenders regarded them as self-employed persons engaged, as the solicitor
advocate for the defenders described at one point, "on a frolic of their own". Particularly as this submission was counter
to the spirit and tenor of all the averments and evidence in the case, I would
have expected that if this argument had any merit, it would have been spelt out
in detail on the pleadings, and reflected by an appropriate plea in law. However, the main reason why I reject this
submission is that there was absolutely no suggestion in the case that the examiners
who conducted the pursuer's test were not acting entirely as representatives of
the organisation to which they belonged.
Although Messrs Barton and Holland
received a fee for what they did, it was perfectly evident that they were
appointed from among their own membership to assess candidates who wished to
join their Association. Vicarious
responsibility can exist only where there is a clear distinction between the
roles of the principals and the agents whose actings will vicariously bind
them. In the present case, there was no
such distinction. It was, on the
contrary, perfectly plain that the examiners were acting not just in the name
of, but in effect as, the defenders as an institution.
[42] The essential question therefore in the case was whether the
defenders were in breach of the implied condition in the contract that they
would assess the pursuer's performance fairly and reasonably in his alteration
of the golf club by reference to the standards of a careful and competent golf
club repairer. This in turn depends on
an evaluation of the test itself, the pursuer's performance and the defenders'
assessment of that performance. Further,
the pursuer requires to prove that even if the defenders were in breach of the
implied term in the contract described above in any material respect, then but
for that breach, the pursuer would have passed the relevant test. At the end of the day, these are all matters
of fact.
[43] The pursuer's case on record concentrates on three particular
aspects of the examination which reflect the central criticisms made by the
defenders' chief examiner, Mr Barton.
It is important to note that although reference is made to the training
supplied by the defenders to applicants for membership of their organisation,
no case was made by the pursuer in the present action of failures or defects in
that training. No evidence was led as to
what was included in this training, except in the most general terms. Further, although the pursuer refers to three
principal heads under which criticisms were made of his performance in the
test, the defenders refer in their answers not only to the proper procedures in
the instruction manual which should accompany the whole of the test which the
pursuer failed but also to what was contained in the training programmes, which
in their view clearly had the effect of broadening the considerations which
bore upon the pursuer's performance.
Both the pursuer and the defenders make frequent reference to these
other issues in their respective presentations of evidence and in their
submissions, and it is clear that the basis on which the pursuer was examined
and failed was not strictly confined to the three chapters specifically
mentioned by him on record.
[44] The first criticism referred to on record is that the pursuer
used the wrong drill size. As I have
indicated, the defenders' approach in this matter was defective. It was perfectly reasonable for the pursuer
to have used a drill ⅜ of an inch in diameter. Where criticism of his performance in this
respect was justified was that he had not measured the depth of the hole which
he drilled on either occasion. The
selection of the drill therefore was not the principal matter which was of
significance in this part of the test;
it was the size of the hole thus 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 this is that he failed to drill the hole to the correct specification. While the manual does not preclude the
drilling of a second hole to accommodate the required additional weight,
neither does it provide that this should be done, presumably because if the
exercise described in the manual was carried out properly in the first
occasion, a second hole would not be necessary.
At the same time I accept that there is nothing wrong in principle in
drilling a second hole, nor was there any particular difficulty about the
location selected by the pursuer of that second hole. However, if the standard of a reasonably
careful and competent golf club repairer is 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.
The pursuer's performance in respect of the second hole may have
improved in certain respects, but in that instance he also failed to provide a
dam for the hole, which again by itself would not, in my view, mean that the
standards of a reasonably competent and careful golf club repairer had been
satisfied in terms of the defenders' reasonably assessed standards.
[45] The second criticism of the pursuer which is made is that he
had let the lead go hard while pouring it.
As I have indicated, the surrounding facts and circumstances tend to
support the view that that is probably what happened. The pursuer, on his own admission, did not
test the temperature of the lead properly.
While he correctly ascertained the point at which the lead was too hot,
when the piece of wood he inserted was seen to be smoking slightly, he then completely
failed to apply the second part of the test by checking whether the lead was
adhering to the wood. Instead he used
his own judgment. In these
circumstances, the criticism that he had not correctly performed an important
part of the operation of pouring the lead into the hole has a clear measure of
justification. The circumstances under
which the top part of the lead plug came away also supports 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.
[46] The third criticism made by the defenders of the pursuer's
performance is that he required to drill a new hole, when he should have drilled
out the first one, and that the location of the second hole was
unsuitable. This chapter of criticism no
doubt to some extent overlaps with the first ground, which has already been
covered. But insofar as it stands
separately as a further ground of criticism, it was clear from the evidence
that it was not justified. The majority
of expert witnesses considered 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.
[47] The final matter which was of relevance to the pursuer's
examination is not one which is mentioned on record and is to the effect that
he is said to have left two screws proud of the plate when it was replaced at
the end of the examination. As I
understood this criticism, Mr Holland indicated that it was the two front
screws which were not flush with the plate.
Mr Barton indicated initially that only one of the screws was
proud. When the sole plate was examined
by Mr Donnachie some years later, it was clear that the two back screws
were proud. In the meantime, there was a
distinct possibility that the plate had been removed for the purpose of, or at
the time of, the taking of the x-ray photographs. The reference to the screws being proud in
Mr Barton's notes were written up subsequent to the test and appear to have
been inserted as an afterthought in a different coloured pen. The whole passage of evidence in this respect
I found so unsatisfactory that it would be unwise to draw any firm conclusions
from it. However, I do have to note that
it appears from the evidence of Mr Barton particularly, 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.
[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.
[49] For the sake of completeness, I should add that this passage of
the evidence was somewhat curious. The
first hole drilled by the pursuer at ⅜ inches in diameter, and by
inference 1/4 inch deep, when filled with lead produced an increase of only two
swing weights. The second hole drilled
by the pursuer was ⅜ inches in diameter by ⅜ inches deep, which
appears to be approximately the same dimensions that the manual suggests would
provide a total of four additional swing weights, and appeared to be
significantly larger than the first hole.
In the event however, when the club was weighed after the second hole
was filled, only a further two club weights had been added, making the total
additional weight up to what was required.
Such erratic statistics did not encourage the drawing of safe
conclusions. I concluded further that it
was in any event reasonable and fair for the defenders to consider the way in
which the pursuer had carried out various parts of the examination, rather than
simply examine the results of the test as a whole. Despite the criticisms than can properly be
made of the defenders' examination process, particularly in the area of supervision,
preparation and training of the examiners, I cannot conclude in the
circumstances that the pursuer would have passed his examination. I have come to this conclusion principally on
the basis of the pursuer's own admissions about what he failed to do in the
course of the test.
[50] Had I found in favour of the pursuer, the assessment of damages
would have been a particularly difficult exercise. The pursuer was without question a
particularly gifted boy golfer, up until the age 18. He won several major Scottish championships,
was runner up in a United Kingdom
event, and played at international level for three years. I considered this indicated not only a high
level of talent, but an equally unusual gift of consistency. When he became a probationer and trainee at
the age of 18, his opportunity for demonstrating his talents was naturally more
limited. He required to work as an
assistant to a series of professional players who were members of the PGA and
was able only to enter a few competitions.
However, he achieved a modest success even in these circumstances and I
found no reason to think that his promise had significantly diminished. When he failed to join the PGA, he attempted
one of the minor American tours, and again while he was not particularly
successful, my impression was that the outcome of this enterprise did not
suggest that he had lost the potential to do well in his chosen sport. I have no difficulty in accepting therefore
that the pursuer would find it significantly more difficult, expensive and
inconvenient, as he explained, to make his mark in the world of professional
golf if he was not a member of the PGA, and that as a member of the PGA he
would have had at least a reasonably good career in the sport. I was left in no doubt that in the pursuer's
circumstances, it would be significantly more difficult to make his way outwith
Scotland, and that he could do very little to promote a domestic career, if he
was not a member of the PGA.
[51] The particular difficulty in this case in assessing damages was
to attempt an assessment of how well the pursuer would have done as a golf club
professional, as a tournament entrant, and as a teacher, had he been a member
of the PGA. The prospects for a young
professional golfer are clearly problematic and difficult to predict. It did not appear to be the pursuer's
immediate intention on becoming a member of the PGA to seek a job as a club
professional or assistant. Rather, he
intended to teach and to enter tournaments.
He had an understanding that on qualification he would become associated
with Auchterlonie's Golf Shop in St Andrews. Mr Miller, who gave evidence, is the
owner of Auchterlonie's but in 1995 he was the general manager. He confirmed that in 1995 he had an
understanding with the pursuer that he would accept teaching engagements from
the shop and undertake other duties.
Mr Miller also had in mind that any tournament success that the
pursuer might have would also be useful publicity for his business. It was clear, despite supposed discrepancies
between the evidence of the pursuer and Mr Miller suggested by the
defenders, that both the pursuer and Mr Miller saw considerable potential
advantage in a joint enterprise.
Mr Miller indicated that Auchterlonie's had recently been described
in a US golf
magazine as the best golf shop in the world.
Whether this is true or not is not a matter to be decided in the present
case, but Mr Miller was plainly a pragmatic and successful businessman and
clearly thought in 1995 that the pursuer had sufficient potential to allow him
to be part of his business.
[52] Both Donald Mackay, and to a certain extent Norman Fletcher
indicated that a successful professional golfer in Scotland at the present time
could earn about г30,000 a year, although it is fair to say that
Mr Fletcher doubted whether the pursuer's limited opportunities to
demonstrate his ability at the highest level would necessarily guarantee that
he would receive such a sum. The pursuer
currently earns about $22,000 a year in the United
States of America as a golf teacher. Bearing in mind differences in the standards
of living between the United States and the United Kingdom; the certainty of his present occupation and
the uncertainty of his prospects in Scotland, and the limited information which
was available for comparison purposes, the best estimate I can reach at the
present time of the difference between what the pursuer would have earned
currently in Scotland had he been a member of the PGA and what he does in fact
earn at present to be about г5,000 net of tax annually. I base this figure on a broad brush approach,
the conclusion I have reached is that it was likely in my view that the pursuer
would have earned a reasonable income in this country from all sources as a
member of the PGA, discounted to some extent by the uncertainty that must
attend the kind of profession to which the pursuer aspired. The kind of work he does now, on a fixed
salary, is not the kind of work he would have done had he stayed in Scotland. Included in the figure of г5,000 per annum is
an element for the prize money that the pursuer might have earned from entering
tournaments. In the circumstances I have
concluded that it is easier to forecast the pursuer's loss from all these
various sources in a general way than it would be to arrive at a global figure
for his loss of opportunity to enter tournaments, added to what he could earn
as a teacher, and the possibility of gaining other employment in golf.
[53] I also attempted to find a check on these figures by looking at
the kind of income which the pursuer could reasonably be expected to have
received from teaching. In his evidence,
he considered that following his membership of the PGA he could have charged
г50 an hour for about 15 lessons a week.
Expenses might have accounted for г10 of that hourly fee. I think these
figures were optimistic and that at the outset of his career he could have
expected to receive a net fee of г25 for an hour teaching. He might reasonably have
expected to be so employed for 35 weeks in the year. This would give him a gross income of about г13,000
a year immediately after he became a member of the PGA. I accept that he could have earned more than
this, but also he could have earned less.
However, I have no doubt that his earnings in this respect would have
increased over the years. He has been
continuously employed as a golf instructor for a number of years, which
suggests that he is good at what he does.
In addition, other opportunities of earning income would have become
open to the pursuer as his career progressed.
It is for instance quite possible that he could have become a
professional at a golf club and still continued to earn money from his teaching
activities as well as from the other activities normally associated with that
position. In all these circumstances, on
the basis of the information before me, I am reinforced in the view that the
difference between the pursuer's income had he become a member of the PGA and
what he in fact now earns is around г5,000 per annum. The pursuer claims this loss for a period of
twenty years. I consider this
reasonable, even although he did no work for 18 months after he failed his
final examination. Accordingly I would have found that his net
loss as a result of him not becoming a member of the PGA can best be assessed
in the sum of г100,000.
[54] In all the circumstances therefore I shall sustain the second
and third pleas-in-law for the defenders, and repel the pleas-in-law for the
pursuer.
