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Barry, Christopher --- "Statutory modifications of contributory negligence at common law" [2017] PrecedentAULA 30; (2017) 140 Precedent 12


STATUTORY MODIFICATIONS OF CONTRIBUTORY NEGLIGENCE AT COMMON LAW

By Christopher Barry QC

The starting point for examining the statutory modifications of the common law principles relating to contributory negligence is to understand what contributory negligence previously meant at common law.

The most recent statement by the High Court of the relevant principle may be found in the judgment of McHugh J in Joslyn v Berryman (Joslyn):[1]

‘At common law, a plaintiff is guilty of contributory negligence when the plaintiff exposes himself or herself to a risk of injury which might reasonably have been foreseen and avoided and suffers an injury within the class of risk to which the plaintiff was exposed.

At common law, contributory negligence used to be a complete defence to an action in negligence.

The old case of Butterfield v Forrester[2] (Butterfield) is often referred to in this connection.

In that case, the defendant left an obstruction on the highway while doing some repairs to his house and the plaintiff on his horse fell over the obstructions and was injured.

The trial judge directed the jury that ‘if he had used ordinary care he must have seen the obstruction; so that the action appeared to happen entirely from his own fault.

On appeal from that direction, Lord Ellenborough CJ said:

‘A party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right. In cases of persons riding upon what is considered to be the wrong side of the road, that would not authorise another purposely to ride up against them. One person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on behalf of the plaintiff.’

At one level of reasoning it can be seen that the relevant principle related to that which was being applied was the principle of causation: namely, that the ‘real cause’ of the plaintiff’s injury was his failure to take reasonable care for his own safety and not, as was alleged in Butterfield, the wrongful act of the defendant leaving obstructions on the road while he was doing repairs to his adjoining house.

ATTEMPTS TO AMELIORATE HARSHNESS OF THE PRINCIPLE

The principle that contributory negligence by the plaintiff would defeat an action for negligence could produce, and did produce, some very harsh results. For example, if there had been gross negligence by a defendant but only a minor temporary or significant want of care on behalf of the plaintiff, the defence of contributory negligence would succeed and the plaintiff’s action would be defeated.

Onus of proof on defendant

The common law judges tried to ameliorate the harshness of the operation of the principle of contributory negligence by at first holding that the onus of proof of contributory negligence was on the defendant.

As McHugh J observed in Joslyn,[3] if the basis of the common law rule was that it was a rule about causation then, logically, one would expect the onus to be on the plaintiff to prove that he or she was not guilty of any contributory negligence.

A second way in which the common law courts attempted to ameliorate the harshness of the rule of contributory negligence being a complete defence was by developing what was called the ‘last opportunity’ rule. The rule, in its simplest form, was that if the defendant had the last opportunity of avoiding the accident, even where the plaintiff was guilty of contributory negligence, the plaintiff would still succeed.

‘Constructive last opportunity’

There even developed a rule of ‘constructive last opportunity’.

For example, in British Columbia Electric Railway Co Ltd v Loach,[4] the plaintiff was run over at a railway crossing by the defendant whose rail vehicle had right of way. Nonetheless the plaintiff succeeded because the brakes on the defendant’s vehicle were not properly maintained. Had they been properly maintained, he would have been able to stop in time. He was accordingly held to have had the ‘constructive last opportunity’ to avoid the accident.

Apart from the fact that the common law in this area became very artificial, it also produced the unsatisfactory outcome that the plaintiff either wholly succeeded or wholly lost while debate ensued during the course of the litigation as to who or who did not have the ‘last opportunity’.

Although the courts had been using the ‘last opportunity rule’ for decades, the High Court in Alford v Magee[5] decided that there was no such ‘rule’. In an important passage, the Court analysed all of the relevant authorities and observed that there were different bases upon which some cases succeeded and some failed, and that these could not be fitted into a principle about the ‘last opportunity’.

The relevant passage in the judgment was as follows:[6]

‘But most probably the fundamental idea behind all the cases from Davies v Mann and Tuff v Warman onwards is that there are cases in which there is so substantial a difference between the position of the plaintiff and the position of the defendant at the material time that (although the accident could not have happened if the plaintiff’s conduct had not been negligent) it would not be fair or reasonable to regard the plaintiff as in any sense the author of his own harm. This position may arise because the defendant had, and the plaintiff had not, a real opportunity, of which a “reasonable man” would have availed himself of “avoiding the mischief” (as in Radley’s case). It may arise because the defendant’s negligent conduct is substantially later in point of time than the plaintiff’s negligent conduct, and reasonably behaving the defendant would have seen its effect and avoided its “consequences” (as in Davies v Mann, the facts of which are made clearer by the report in the Jurist than by that of Meeson and Welsby). It may arise because the defendant had an advantage over the plaintiff in that he was “master of the situation”, but chose to run the risk, the view which was, in effect, held to be open to the jury in Williams v Commissioner of Road Transport and Tramways and the view which was open in Tuff v Warman itself (a case of collision between a steamship and a sailing barge). It may arise because the defendant had such an advantage over the plaintiff that he ought to have been ‘master of the situation’ but unreasonably failed to take advantage of his superior position (as in Municipal Tramways Trust v Buckley).’

Statutory reform

The problems caused by the harshness of the contributory negligence principle in common law actions led to the first major statutory reform in this area, with the passage in the UK of the Law Reform (Contributory Negligence) Act 1945. This directed the court to reduce a plaintiff’s damages ‘to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage’.

Just and equitable

The ‘just and equitable’ apportionment provision subsequently became part of the law relating to contributory negligence in each of the Australian states and territories (although the wording is slightly different in each of the various enactments).[7]

The ‘just and equitable’ determination gave the court a wide discretion in relation to apportionment, and particular principles developed in relation to particular categories of negligence. For example, in master and servant cases the discretion was rarely exercised adversely to the plaintiff who was injured while carrying out the system of work laid down by his employer. McLean v Tedman[8] is perhaps the best illustration. Similarly, rules developed in relation to particular classes of plaintiff, the obvious example being young children.

The ordinary test for contributory negligence was an objective test,[9] and the formula used to determine contributory negligence was the degree of departure from the standard of care of the reasonable person.[10]

In the case of children, the test became the reasonable child of the plaintiff’s age and experience.[11]

Motor vehicle accidents

The next major attempt to modify the common law rules relating to contributory negligence involved the development of special rules for motor vehicle accidents (MVAs).

These cases best illustrate another difficulty that arises in the area of contributory negligence: namely, the distinction between the acts or conduct of a plaintiff in causing the accident and those which had nothing to do with the cause of the accident, but in respect of which the damage to the plaintiff has been all the greater.

An example of the first situation may be where both drivers are held to have each failed to keep a proper lookout. In such a case, each driver would succeed but have their damages reduced for contributory negligence, ordinarily by 50 per cent.[12] The second situation could include where the plaintiff failed to wear a seatbelt.

Before amendments were made to deal specifically with that issue, it was often necessary for a defendant to call expert evidence upon what the effect had been in the particular case of a plaintiff’s failure to wear a seatbelt,[13] or to prove that there was a properly adjusted seatbelt available to be worn.

Those difficulties provoked a number of statutory amendments. For example, in the ACT the Civil Law (Wrongs) Act 2002 relevantly provides in s97 that:

‘1. Contributory negligence must be presumed if the injured person was injured in a motor vehicle accident and was at least 16 years old at the time of the accident and (a) was not wearing a seatbelt at the time of the accident as required under the Road Transport (Safety and Traffic Management) Act 1999.’

This particular enactment also deals with failure to wear a helmet, not being in a seat in the motor vehicle, etc, but by reversing the onus on the plaintiff it does enable a plaintiff to prove relevantly that the failure to wear a seatbelt did not make the injury less serious or that he or she could not have fastened it.

In NSW, there is a kind of hybrid statutory reformulation of contributory negligence in MVAs, because the Motor Accident Compensation Act 1999 relevantly provides:

‘Section 138 Contributory Negligence – Generally
(2) A finding of contributory negligence must be made in the following cases:
(a) Where the injured person or deceased person has been convicted of an alcohol or other drug related offence in relation to the motor accident, unless the plaintiff satisfies the Court that the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident; or
(b) Where:
(i) the injured person (not being a minor) or the deceased person was, at the time of the motor accident, a voluntary passenger in or on a motor vehicle, and
(ii) the driver’s ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol or any other drug and the injured person or the deceased person was aware, or ought to have been aware, of the impairment, unless, in the circumstances of the case, the injured person or the deceased person could not reasonably be expected to have declined to become a passenger in or on the motor vehicle.
(c) Where the injured person (not being a minor) or the deceased person was, at the time of the motor accident, not wearing a seatbelt when required by law to do so,
(d) Where the injured person or deceased person was at the time of the motor accident, not wearing a protective helmet when required by law to do so.
(3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the Court thinks just and equitable in the circumstances of the case.’

The relevant difference of statutory wording between the various forms of the apportionment legislation and this provision is that under the Motor Accidents Compensation Act the relevant test ends with the words ‘in the circumstances of the case’ and not with a reference to ‘the claimant’s share in the responsibility for the damage.

Appellate intervention where apportionment arises

Words such as ‘just and equitable’ give judges a very wide discretion in relation to the percentages by which damages may be reduced for contributory negligence. Because those powers are discretionary, they attract the principle enunciated in House v The King:[14]

‘The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough for the judges composing the appellate court [to] consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.’

The scope of the discretion in relation to contributory negligence is reflected in the fact that percentages for deductions are usually expressed in very global terms, 10 per cent, 25 per cent, etc.

The rules about appellate intervention with the exercise of discretionary judgments have been applied specifically in the case of apportionment for contributory negligence.[15]

‘REVIEW OF THE LAW OF NEGLIGENCE’

The next major statutory reform of the law relating to contributory negligence arose as a result of recommendations contained in the Review of the law of negligence: final report,[16] which had been commissioned by the Commonwealth government in an attempt to introduce uniform changes to negligence law throughout the Commonwealth.

The opening paragraph of the chapter on contributory negligence was a precursor of what was to follow:

‘In relation to claims for negligently caused personal injury and death, contributory negligence is failure by a person (typically the plaintiff) to take reasonable care for his or her own safety, which contributes to the harm the person suffers.’[17]

The words ‘typically the plaintiff’ raise immediate concerns, since it is impossible to find a case where the relevant conduct that was being examined in the context of contributory negligence was anyone other than the plaintiff.

The Panel of Eminent Persons (the Panel) asked itself three questions:

(a) Should the standard of care applicable to contributory negligence be the same as that applicable to negligence?

(b) Should particular types of contributorily negligent conduct attract a minimum reduction of damages fixed by statute?

(c) Should the law allow apportionment for contributory negligence in such a way as to deny the contributorily negligent person any damages at all?

Question (a) is misconceived because the High Court has held that ‘...contributory negligence involves conduct which exposes the actor to the risk of injury without necessarily exposing others to the risk’.[18]

Question (b) fails to recognise that the apportionment legislation was enacted to accommodate the infinite variety of circumstances in particular cases.

Question (c) faces the difficulty that the High Court has already decided that it is not possible to have 100 per cent contributory negligence.[19] The reasons for this is obvious. The issue of contributory negligence cannot arise unless the defendant has already been found to have been guilty of negligence.

The only way to advance the proposition in (c) is to repeal the apportionment legislation and thereby return the law to the state it was in at the beginning of the 19th century, as discussed earlier. Fortunately, that question did not result in a recommendation along these lines, but some state Parliaments have enacted a watered down version of the same notion.[20]

Notwithstanding these difficulties, the Panel answered questions (a) and (c) in the affirmative.

In respect of (a), the Panel reasoned that ‘there is in the Australian community today a widely held expectation that, in general, people will take as much care for themselves as they expect others to take for them’.[21]

The Panel did not identify the source of this empirical observation about ‘the Australian community’ as if it were one homogenous mass of people who all share the same belief systems and values.

Nevertheless, the reasoning arising out of the recommendation made in answer to question (a) found expression in various forms of the Civil Liability Acts or their equivalent enacted by various states following the publication of the Panel’s report. For example, in NSW s5R of the Civil Liability Act 2002 states:

‘1. The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of harm.
2. For that purpose:
(a) The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) The matter is to be determined on the basis of what that person knew or ought to have known at the time.’

Subsection 5R(2) of the NSW Civil Liability Act 2002[22] is not controversial because, as previously observed, contributory negligence was always something that was analysed ‘from the standard of care of the reasonable person’.[23] The ‘principles’ to which s5R refers are the ‘general principles’ contained in ss5B and 5C of Division 2 of Part 1A of the Civil Liability Act (NSW).

It is not easy to see how some of these principles fit with the duty of a person to take care of their own safety; for example, sub-ss5B(2)(c) and 5B(2)(d). The same may be said of s5C.

The section plainly deals with a responsibility to take precautions to avoid harm to others, not to oneself.

Despite the High Court’s decision that it is not logically possible to have 100 per cent contributory negligence, the Parliament of NSW nevertheless enacted s5S of the Civil Liability Act, which states:

‘In determining the extent of a reduction in damages by reason of contributory negligence, a Court may determine a reduction of one hundred percent if the Court thinks it is just to do so, with the result that the claim for damages is defeated.’

The first odd thing about s5S is that because contributory negligence can logically arise only when one person, the tortfeasor, has committed a wrong and the plaintiff has ‘contributed’ to the adverse outcome to him or herself, if the plaintiff were 100 per cent contributorily negligent, then there is no room for the existence of another party to the litigation. Although it is easy to understand how someone could fail to exercise reasonable care for their own safety, it is somewhat difficult to understand how a plaintiff could be in breach of a duty to exercise reasonable care for his or her own safety.

The second odd thing about s5S is that one of the other elements of the tort of negligence is that damage is the foundation of the action. Without damage there is no negligence. Logically, it must follow that if the plaintiff is 100 per cent guilty of contributory negligence, there is no cause of action at all rather than a cause of action which has been ‘defeated’.

The Panel’s reasoning for recommending that there can be a finding of 100 per cent contributory negligence was that ‘a person will be held to have voluntarily assumed risk only if they were actually aware of the precise risk in question and freely accepted that risk’.

The case law in relation to voluntary assumption of risk was concerned with whether a duty of care was owed (a matter about which the Civil Liability Act had nothing to say), and not with breach of duty. The case law finding no duty in a circumstance involving a joint illegal enterprise is a good illustration of the fact that the doctrine of voluntary assumption of risk is concerned with duty not breach.[24]

There has not been much occasion for the NSW Court of Appeal to grapple with these statutory modifications to the law on contributory negligence, but two recent cases give a good indication of the likely future approach.

The facts in Boral Bricks Pty Ltd v Cosmidis (No. 2)[25] (Cosmidis) were as follows:

‘On 18 April 2008, Mr Orestis Cosmidis (the respondent) was delivering a tanker load of fuel to premises occupied by Boral Bricks Pty Ltd (the appellant). When walking back to his truck, he was hit from behind by a forklift, suffering major injuries. The respondent was aware that forklifts operated in the area.
The appellant was found liable in negligence but the respondent was found not to be contributorily negligent in failing to keep a proper lookout.’

In overturning the finding that there was no contributory negligence by the plaintiff, Basten JA and Emmett JA held that:

Section 5R of the Civil Liability Act reflects the policy that people are to take responsibility for their own lives and safety. That the likely seriousness of harm caused by the driver’s conduct is greater than the pedestrian’s does not diminish the responsibility of either for the accident. If each were equally careless, liability should be shared equally. The approach taken in earlier authorities that the culpability of a person controlling a potentially dangerous heavy vehicle is necessarily greater no longer applies.’

Although this was a case governed by the Motor Accidents Act as well as the Civil Liability Act, the ‘purposive’ construction of the relevant provision has significantly changed the approach that courts may take to issues concerning contributory negligence.

Basten JA noted that s5R was intended to reflect the recommendations of the Review of the law of negligence[26] referred to above and so, accordingly, a purposive approach to the construction of the legislation needed to be adopted. He concluded that ‘if the plaintiff were aware, or ought to have been aware, of the presence of a large forklift operating in the area and if the forklift driver were aware, or should have been aware, of the likely presence of pedestrians, and if each were equally careless, liability should be shared equally’. This case represents a significant departure from the line of cases involving motor vehicles and pedestrians, where apportionment took into account the fact that the defendant was in charge of a ‘lethal machine’.

Notwithstanding this rejection of that principle, it was nevertheless necessary in the course of the next stage of the analysis – the apportionment between plaintiff and defendant – to examine any particular features of the case which were relevant. Having done so, Basten JA concluded that the appropriate reduction for contributory negligence was 30 per cent.

McColl JA delivered a dissenting judgment in which she concluded that, on the issue of apportionment, the finding for contributory negligence should be 10 per cent, because:

‘[71] In my view the appellant’s culpability for the accident, having regard to its obligations as occupier of the site to ensure that its system of work did not expose entrants to unreasonable risk of physical injury and its responsibility for Mr Mohr’s (the forklift driver) failure to keep a proper lookout manifestly exceeded the respondent’s culpability. In that respect I would accept the respondent’s submission that his failure to keep a proper lookout should be characterised as an act of momentary inattention, albeit that it did constitute a departure from the standard of care he ought to have exercised in the circumstances in which he was walking. It is clear that his omission contributed to the harm which befell him.’

The same issue that arose in Cosmidis came before a differently constituted court in T and X Company Pty Ltd v Chivas [2014] NSWCA 235 (T and X Co).

That, too, was a case involving a pedestrian and a motor vehicle. Basten JA with whom Barrett JA agreed adopted the same process of reasoning as he had in Cosmidis.

However, Beazley P dissented. Her Honour’s reasoning was:

‘[16] For his part, the deceased acted either with a high degree of carelessness, or made a serious error of judgment in respect of the oncoming taxi. However, the driver of the vehicle not only acted with a high degree of negligence in driving in the manner he did, the likely seriousness of the harm in the driver not taking the precaution of driving more slowly was such that the taxi driver should bear a higher proportion of the blame for the accident.’

In other words, the ‘lethal machine’ analysis survived in her Honour’s judgment, although not in the judgment of the majority.

CONCLUSION

Apart from the obvious difficulty associated with trying to apply ‘general principles’ which are concerned with the obligations not to cause injury to others to contributory negligence, the main difficulty with the contributory negligence amendments made in the various Civil Liability and Wrongs Acts is that the statutory formulation has to be reconciled with the apportionment legislation.

In Cosmidis,[27] the majority of the Court of Appeal approached the issue of contributory negligence from the perspective reflected in the Civil Liability Act: that people should take responsibility for their own lives and safety. On this basis, they reduced the plaintiff’s damages by 50 per cent for contributory negligence.

McColl JA did not base her reasoning upon any ‘policy’ but upon the particular facts of that case. Aside from the driver of the vehicle that ran over the plaintiff and the plaintiff’s behaviour, she also directed attention to the fact that the cause of action relied upon the vicarious liability of the driver of the vehicle and the liability of the defendant as occupier of the premises ‘to ensure that its system of work did not expose entrants to unreasonable risk of physical injury’.

McColl JA’s approach was consistent with that taken by common law judges for centuries; namely, to look at all of the relevant facts rather than apply a ‘policy’ (presumably, the same policy referred to in the Panel report as being that derived from this ephemeral notion of ‘the Australian community’).

As noted previously, Beazley P entered a strong dissenting judgment in T and X Co.[28]

In my opinion, the dissenting judgments of McColl JA and Beazley P in both of these cases were correct and the majority judgments were wrong. The reason for this is that s5R says nothing about apportionment. What it says is ‘the principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm’.

As a matter of construction, that section says nothing about apportionment but only those circumstances in which a court might find contributory negligence or not. It concerns whether or not the plaintiff has been in breach of some duty owed to himself or herself to take reasonable care for his or her own safety.

Having found contributory negligence by applying those principles, what must then be done is the apportionment exercise which, as in all common law actions, involves an examination of all relevant factual circumstances.

At that stage of the analysis, the apportionment legislation requires an examination of the degree of culpability on the facts of each case. Whether or not there has been any contributory negligence by the plaintiff is a different question from the question of apportionment. It involves an application of a discretion to the facts in a particular case and has nothing to do with ‘policy’.

Ultimately the effect of these most recent reforms is that findings of contributory negligence will be made more frequently than may previously have been the case. The actual effect should not be as deleterious to plaintiffs as the majority decisions in Cosmidis and T and X Co have suggested, because all relevant factual matters should then be taken into account for the purposes of the apportionment part of the analysis. The attribution of responsibility should reflect the fundamental principles behind negligence law – namely, a duty imposed in several general and specific circumstances not to cause injury and loss to others.

Christopher Barry QC is a generalist silk and Head of Chambers on 5th Floor, Selborne Chambers, Sydney. PHONE (02) 9235 1009 EMAIL barryster@selbornechambers.com.au.


[1] [2003] HCA 34; [2003] 214 CLR 552 at [16].

[2] [1809] EngR 175; (1809) 11 East 60; 103 ER 926.

[3] See above note 1, [18].

[4] [1916] 1 AC 719.

[5] [1952] HCA 3; (1952) 85 CLR 437.

[6] Ibid, [461] (footnotes omitted).

[7] See Law Reform Act 1995 (Qld) s10(1); Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s9(1); Wrongs Act 1958 (Vic) s26(1); Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA) s4(1).

[8] (1984) 155 CLR 306.

[9] Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552.

[10] Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10.

[11] Mobbs v Kain [2009] NSWCA 301.

[12] Joseph v Platcher (1991) 14 MVR 269.

[13] Hoare v Rudd (Unreported, NSW Court of Appeal, 8 August 1989).

[14] (1936) 55 CLR 499 at 504.

[15] Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10.

[16] Commonwealth, Review of the law of negligence: final report (September 2002).

[17] Ibid, [8.1].

[18] Commissioner for Railways v Ruprecht [1979] HCA 37; (1979) 142 CLR 563 at 570 per Mason J.

[19] Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 149 ALR 25.

[20] For example the ‘presumption of contributory negligence’ in relation to intoxication in s96 of the Civil Law (Wrongs) Act 2002 (ACT).

[21] See above note 16, [8.10].

[22] The analogous provision in Queensland is s23 of the Civil Liability Act 2003; in Victoria, it is s62 of the Wrongs Act 1958; in South Australia, it is s44 of the Civil Liability Act 1936; in Tasmania, it is s23 of the Civil Liability Act 2002.

[23] Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10.

[24] Gala v Preston [1991] HCA 18; (1991) 172 CLR 243; Fabre v Arenales (1992) 27 NSWLR 437.

[25] [2014] NSWCA 139.

[26] See above note 16.

[27] [2014] NSWCA 139.

[28] [2014] NSWCA 235.


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