With all the above ‘caveats’, the decisions in Phillips Products Ltd v Hyland, George Mitchell v Finney Lock Seeds and Smith v Bush can be (at the very least) a useful indication as to how courts are likely to approach the reasonableness test in practice. The facts of Phillips have already been outlined. Despite all the preliminary issues, in the end the validity of condition 8 turned on the application of the reasonableness test. The first instance judge had found the test not to be satisfied and the Court of Appeal dismissed the appeal: Phillips Products Ltd v Hyland and Others [1987] 1 WLR 659, CA, p 666

doi:10.4324/9781843141518-194

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With all the above ‘caveats’, the decisions in Phillips Products Ltd v Hyland, George Mitchell v Finney Lock Seeds and Smith v Bush can be (at the very least) a useful indication as to how courts are likely to approach the reasonableness test in practice. The facts of Phillips have already been outlined. Despite all the preliminary issues, in the end the validity of condition 8 turned on the application of the reasonableness test. The first instance judge had found the test not to be satisfied and the Court of Appeal dismissed the appeal: Phillips Products Ltd v Hyland and Others [1987] 1 WLR 659, CA, p 666

ABSTRACT

Phillips Products Ltd v Hyland and Others [1987] 1 WLR 659, CA, p 666 Slade LJ: As the judge pointed out, all the relevant circumstances were known to both parties at that time. The task which he therefore set himself was to examine all the relevant circumstances and then ask himself whether, on the balance of probabilities, he was satisfied that cl 8, insofar as it purported to exclude Hamstead’s liability for Mr Hyland’s negligence, was a fair and reasonable term. As to these matters, his conclusions as set out in his judgment were: ‘What then were the relevant circumstances? First, the second defendants carried on the business of hiring out plant and operators. In contrast the first defendants were steel stockholders, and as such had no occasion to hire plant except on the odd occasions when they had building work to be done at their premises. There had been apparently only three such occasions: one in 1979, one in July 1980 when the drainage trench was dug and the final occasion when the damage was done in August 1980.