The question is whether upholding the relevant clause or other term would conflict with the interests of the public as a result of extreme unfairness or other policy issues; in other words, whether a contractual provision, in view of its extreme unfairness or other policy considerations, conflicts with the interests of society.
22.
The question of whether the contractual exclusion of a hospital's liability for damages caused by the gross negligence of its nursing staff was in conflict with the public interest was accordingly not relevant to the instant matter; furthermore, even if that were the case, it would not entail the automatic invalidity of the relevant clause.
23.
In its main judgment, the Board noted that in determining whether a material adverse change had arisen under the relevant clause in the facility agreement, " an event need not objectively have such an adverse effect : all that is required is that ATT believes that it has such an effect . " A more restrictive approach has since been adopted by the Commercial Court of England and Wales.
