Phillips v Hyland [1987] 1 WLR 659 Court of Appeal

The claimant (Phillips) hired a JCB excavator from Hampstead Plant Hire. Under the contract the claimant had to have a driver provided by Hampstead. The contract also contained a clause stating that the driver became the servant of the hirer which would therefore negate Hampstead’s liability arising from the negligence of the driver. The driver (Hyland) crashed the JCB into a building owned by the claimant causing extensive damage.

The Court of Appeal held that the term acted as an exclusion clause and was unreasonable because:

1. the contract was entered into at short notice
2. The claimant was given little opportunity to familiarise himself with the term

3. The claimant was forced into a take it or leave it situation as had no choice but to accept the driver.
4. There was little opportunity to arrange own insurance cover
5. The claimant had no choice in the selection of driver or to assess their qualifications or suitability to do the job.

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