New South Wales Court of Appeal CITATION : Carter v Boan [2001] NSWCA 160 FILE NUMBER(S) : CA 40218/00 HEARING DATE(S) : 10 May 2001 JUDGMENT DATE : 1 June 2001 Darren John Carter (Appellant) PARTIES : v Peter David Boan (Respondent) JUDGMENT OF : Heydon JA at 1; Davies AJA at 4 LOWER COURT JURISDICTION : District Court LOWER COURT DC414/98 FILE NUMBER(S) : LOWER COURT Mahoney DCJ JUDICIAL OFFICER : COUNSEL : A: Mr R Bartlett SC, Mr P Crittle R: Mr C Hoeben SC SOLICITORS : A: Thomas Laycock R: Hannigans CATCHWORDS : Personal Injury - Motor Accidents Act - quantum - whether damages excessive - whether ultimate findings were well based - whether pre-existing condition deteriorated as a result of accident injuries. LEGISLATION CITED : Motor Accidents Act, 1988, ss72, 79A CASES CITED: Griffiths v Kerkemeyer (1977) 139 CLR 161 DECISION : See paragraph 41. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40218/00 DC 414/98 HEYDON JA DAVIES AJA FRIDAY, 1 JUNE 2001 DARREN JOHN CARTER v PETER DAVID BOAN JUDGMENT 1 HEYDON JA: I agree with the order proposed by Davies AJA. I also agree with the reasons advanced for it, except in relation to the trial judge's allowance for carers of $50,000. 2 On that topic I agree with Davies AJA's conclusion that the figure of $25,000 should be substituted for the trial judge's figure of $50,000, but would put the reasons a little differently. 3 In the course of argument there was some debate about the true construction of s 72(2) of the Motor Accidents Act 1988. As Mr Boan's counsel accepted, the trial judge did not analyse precisely whether any award could be made, perhaps because the evidence was not in a condition permitting any ready analysis. He referred to s "71(5) of the Act" as calling "for a discounting in respect of services which would have been provided in any event": this was either a typographical error for s 72(6) or a reference to some non-relevant version of the Act. However, the absence of analysis by the trial judge, his erroneous reference to s 71(5), and the debate about the true construction of s 72(2) do not matter. In particular, it is not necessary to arrive at a conclusion about the true construction of s 72(2) because the evidence, even though it is vague, suggests that s 72(2) does not come into play on any reading of it. I agree with Davies AJA that the evidence is too imprecise to justify the trial judge's allowance of $50,000 for carers and that a figure of $25,000 should be substituted for it. 4 DAVIES AJA: This is an appeal from a judgment of a Judge of the District Court of New South Wales. The proceedings before his Honour were a claim for damages for personal injuries arising out of a motor vehicle accident which occurred on 6 December 1995. Liability was admitted. His Honour assessed damages at $355,774. Various aspects of his Honour's calculations in arriving at that figure have been raised in this appeal. 5 It is an unfortunate fact of life that Judges of the District Court do their work under conditions of considerable pressure. His Honour completed the hearing of the action on Wednesday, 8 March 2000. He gave an oral judgment on Friday, 10 March 2000, without having the transcript available and without having the opportunity to consider, in any great detail, all of the bulky exhibits which were before him. In the result, there are statements by his Honour in his reasons for judgment which are incorrect and, perhaps because his Honour's oral judgment was lengthy, extending for more than thirty pages in type, there are aspects of his deliberations which may not have found their way into his Honour's ultimate award. Many of the grounds of appeal arise out of those inaccuracies and conflicts. 6 However, an appellate court must make due allowance for infelicities in the reasons for judgment of a busy judge and must take particular care to ascertain whether the ultimate findings of the trial judge were well based upon the material and evidence which was before the court. In the present case, I am of the view that the conclusions of the trial Judge were well based save in two respects. 7 It is sufficient to describe the relevant facts in brief terms. At the time of the accident, Peter David Boan, the plaintiff below, was 33 years of age. He was grossly obese with a weight which had increased to 160 kilograms by the time of the trial. He was a person of low intellect, having an intelligence which was later calculated to be close to the bottom end of the average range. He left school at 14 years of age. Notwithstanding his problems, he had a good work history graduating from working in the yards of truck operators to driving trucks and then semi-trailers. Over the years, he worked for a number of employers, mainly based in the north of New South Wales. This work included picking up materials for recycling, carting timber and transporting stock. He became an interstate truck driver and he coped with the long hours and stress of this by taking amphetamines. At about the end of 1994, Mr Boan considered that he needed a rest from driving interstate vehicles. He was employed on a tea-tree plantation on which he undertook labouring and other work. He also, from time to time, drove a bus. After working there for about a year, Mr Boan decided to return to the better remunerated work of truck driving. He had given notice of his intention to do so when the accident intervened. 8 The evidence does not show that, over all this period, Mr Boan was other than a competent employee. He seems to have been able to obtain work readily. Indeed, when after the accident he sought to return to work as a truck driver, he was able to obtain work with one of his former employers. He gave up that employment only because he felt that he could not cope. Accordingly, the position was that, before the accident, although Mr Boan had a low intellect, was obese and had some problem with back pain, he was able to and did find constant employment which included the driving of interstate transports, a task with which he was able to cope with the use of amphetamines. 9 The trial Judge considered, however, that Mr Boan had a shortened longevity due partly to his obesity, a condition which had led to diabetes mellitus by the time of the trial. Taking account of the medical evidence before him and the Australian Life Tables, the trial Judge considered that Mr Boan had a life expectancy which would carry him through to about 69 years at the most. 10 On 6 December 1995, Mr Boan was involved in a head-on collision for which he was in no way responsible. In the accident, Mr Boan's head struck and shattered the front windscreen of his car. He received a severe laceration on his forehead. There is an issue as to whether or not he suffered frontal lobe damage. Mr Boan suffered a fracture to the jaw. He suffered a seriously fractured mandible on the right side close to the point of the chin and also some dental loss. Mr Boan also suffered and continues to suffer chronic headaches which, in the view of the trial Judge, were associated with his altered jaw geometry. 11 Prior to the accident, Mr Boan had suffered from a degree of obstructive sleep apnoea ("OSA") but this had not interfered with his work or lifestyle. The OSA was aggravated by the accident, seriously inhibiting Mr Boan's ability to function. Another factor inhibiting Mr Boan's ability to function was that he took analgesics, particularly Panadeine Forte, to control his headaches. The trial Judge observed Mr Boan during the hearing and saw him, from time to time, in the back of the Court, either nodding off or apparently in deep sleep. On one such occasion, he drew the attention of one of the medical witnesses, Dr Cameron, to Mr Boan's condition. Dr Cameron commented upon the bluish hue in Mr Boan's face and neck which he attributed to hypoxia, a lack of oxygen, which resulted from Mr Boan's OSA. 12 Mr Boan spent seven days in hospital. After he returned home, he was looked after by others including his mother, who did the cooking for him. The evidence does not disclose for how long this assistance continued. Mr Boan's mother died prior to the trial. At the time of the trial, his father, who was living with him, did the cooking. Also helping was a Mr Charlie Payne, a friend who lived with Mr Boan from time to time. Mr Boan had a partner, Ms Jennifer Mallett, but, up to the time of the trial, they had maintained separate residences. Nevertheless, Mr Boan saw Ms Mallett everyday and she assisted with the shopping, banking and the like. In 1996 and 1997, Mr Boan returned to driving. He earned $19,972 gross but felt that he was unable to continue. As to work in his own home or Ms Mallett's home, Mr Boan did very little. He spent much of each day watching the television. He kept his own room tidy but substantially gave up tasks such as vacuuming the house or mowing the lawn. 13 It is clear from the findings of the trial Judge that his Honour considered that Mr Boan would be unlikely to work again. He awarded economic loss up to age 50, which his Honour considered was the age to which Mr Boan would have been able to work had the accident not happened. No specific allowance was made for remunerative work which might be undertaken. However, the wage loss was heavily discounted. His Honour also made a very substantial award by way of carer's allowance. 14 In these circumstances, it is clear that his Honour formed the view that the accident transformed Mr Boan from a man who was able to earn income, and who would have continued to do so, into one who was unlikely to work again. There was adequate material before the trial Judge to support that conclusion. Mr Boan had been very obese prior to the accident and of low intellect, but he functioned well as an employee. After the accident, Mr Boan put on an additional 10 to 15 kilograms and suffered from severe OSA, which affected his ability to function. In addition, he suffered from extremely severe headaches, for which he took a large quantity of Panadeine Forte. The trial Judge understandably concluded that Mr Boan would be a danger on the road. As to labouring work or, indeed, work of any other kind, Mr Boan seemed incapable of it. He seemed to be incapable of completing many ordinary household tasks such as vacuuming the house or mowing the lawn. 15 The appeal has, in general, been based upon the submission that the trial Judge accepted the evidence of Dr John Cameron, a consultant neurologist, and that, in Dr Cameron's view, Mr Boan suffered only a relatively minor head injury, not frontal lobe damage, that his main complaint was chronic headache, which was not related to any direct or indirect effect of his injuries suffered in the accident, and that Mr Boan's OSA was due to his obesity and not to the accident. Dr Cameron's report dated 22 March 1999 read, inter alia:- "Peter Boan was involved in a motor vehicle accident on 6.12.95. In this event, it's possible he suffered a minor head injury since there may have been a period of 2-3 minutes where he was amnesic for the events. He had a GCS of 14 on 15 at the accident site and overall this would suggest a relatively minor head injury. He appears to have completely recovered from this. His main complaint is chronic headache. Some of these headaches are suggestive of vascular-migraine type disturbance while the predominant headache is suggestive of muscular contraction pain. It is most probable he did experience headaches initially related to his facial injuries but these appear to have recovered and it is highly improbable his injuries would have caused headaches to persist any more than a few months following the accident. From his description, his headaches are obviously severe and disabling. I do not believe one can relate his present headache disturbance to any direct or indirect effect of his injuries suffered some 3½ years ago. He has a very high constant intake of Panadeine Forte which is a very strong analgesic and narcotic agent. He has been taking this medication since the accident. Such medication can induce what is referred to as analgesic induced headache and it's quite probable his present headache disturbance is related to this constant use of narcotic medication. Peter Boan also suffers from obstructive sleep apnoea due to his obesity. He has symptoms on awakening suggestive of CO retention related to obstructive sleep apnoea. This causes prominent headache also and this could be contributing to his headache disturbance. His headache disturbance would improve and possibly settle if he was slowly weaned from Panadeine Forte and also his sleep disturbance corrected. He might also benefit from a low dose of amitryptilline to control his headache in the meantime." 16 Dr Cameron expressed similar views in his oral evidence, save that he agreed that Mr Boan's OSA would have been aggravated for a few months by the fracture of his jaw. Dr Cameron said that, once the swelling had settled down and the jaw had been realigned, the effect of the accident would have dissipated and that the OSA which remained was entirely due to Mr Boan's obesity. 17 Needless to say, if Dr Cameron's views had been accepted, the damages awarded should have been only a small proportion of those which the trial Judge in fact awarded. 18 Dealing with the issue of the head injury and its sequelae, the trial Judge devoted considerable time to discussing the opposing views of the expert called for Mr Boan, Professor G A Broe, a consultant neurologist, and those of Dr Cameron, who had been called on behalf of Mr Carter. Professor Broe had expressed the opinion that Mr Boan had suffered a very severe head injury. He said, in his report dated 17 December 1999:- "Firstly it is my opinion that Peter Boan suffered a very severe head injury in the accident of the 6th of December 1995 with permanent post traumatic brain damage which has caused the majority of his post trauma symptoms. Secondly it is my opinion that his symptoms are complicated by obstructive sleep apnoea however in symptomatic terms, and in particularly in relationship to day time drowsiness and sleepiness, this is post traumatic and caused by further increase in his weight post trauma due to frontal inability to control his dietary intake and in addition by the trauma to his jaw and oro-facial region. While he readily admits to snoring and occasional waking with a start prior to the accident of the 6th of December 1995 it is clear from the history I have outlined in the body of the report that there were no significant symptoms of obstructive sleep apnoea prior to the accident. It is also my opinion that Peter Boan is disabled in terms his enjoyment of life, his ability to socialise and his ability to care for himself particularly in terms of instrumental activities of daily living. Were it not for the support of his son, daughter, father and partner, Jennifer Mallet, Peter Boan would not be able to live independently at home. While he is able to carry out his basic ADLs including bathing, feeding, dressing and toileting he needs some monitoring even in these activities. It is my opinion that he is not able to independently carry out his own cooking, housework, shopping and monitor his own nutrition in the absence of his present support systems. In their absence he would require a carer/minder three hours a day seven days a week and the support of a program manager to supervise hands on carer/minders for eight hours a month." 19 The trial Judge accepted that Professor Broe and Dr Cameron were equally qualified experts but expressed the view that, on the issue of brain damage, he preferred the evidence of Dr Cameron. I need not set out the several reasons given. The trial Judge said, "In the upshot, I tend more towards an acceptance of Dr Cameron's views than the acceptance of Professor Broe's views" and, "On balance, the views of Dr Cameron seem to me to be more acceptable than those of Professor Broe". 20 Notwithstanding this finding, it is not clear what was the precise view which the trial Judge carried through into his award of damages. Having said that he preferred Dr Cameron's views, the trial Judge, nevertheless, used the term "the brain damage", rather than "the head injury", on many occasions throughout his judgment. Indeed, on two occasions, the trial Judge referred to "the frontal lobe damage". Moreover, the allowance of $50,000, by way of carer's allowance, seems predicated upon a physical injury such as frontal lobe damage. 21 On the other hand, in expressing the relevant finding of fact, the trial Judge used the expression "head injury". The trial Judge made this finding:- "He sustained head injury and loss of consciousness, as recorded in the Exhibit E records that I have already read out, as well as the Lismore Base Hospital records. I am satisfied that the head injury was of a mild severity and that injury was due to the motor vehicle accident." 22 It is impossible to form a firm view about the matter of the head injury. However, I consider that it is not necessary to do so. Mr Boan's inability to work after the accident was sufficiently explained by the increase in his obesity, the aggravation of his OSA, his headaches and his heavy use of Panadeine Forte. These factors rendered him unfit for work and they brought about the condition which impressed the trial Judge during the course of the trial, when he saw Mr Boan nodding off and falling asleep and observed Mr Boan's bluish hue, identified as hypoxia. It is my impression that the trial Judge was very much influenced by what he, himself, saw of Mr Boan and by the fact that, in the condition in which the trial Judge saw him, Mr Boan was totally unfit for work driving trucks. The trial Judge made no mention of any specific fact or disability which he attributed to frontal lobe damage. Indeed, the contrary appears to be the case. The trial Judge specifically said that the head injury, "although it is not as severe as the case for the plaintiff would seek to make it out, in my view would also have kept him out of the workforce for a time". As that was the only resulting disability which the trial Judge attributed to the accident, it would seem that the trial Judge did not take other brain damage factors into account. There is no reason to doubt the finding that the head injury would have kept Mr Boan out of the workforce for a time. 23 Although he did not expressly say so, the trial Judge did not accept Dr Cameron's views with respect to either Mr Boan's OSA or his headaches. The trial Judge found that the OSA had been aggravated by the motor vehicle accident. There was adequate evidence before the Court to justify that conclusion. The trial Judge found that Mr Boan had suffered from OSA prior to the accident; however, it had not interfered with his earning capacity. The OSA was dramatically aggravated by the injury to the jaw, which had caused swelling. It appears, also, to have been aggravated by medication given whilst Mr Boan was in hospital. The OSA did not, however, subside. It did not return to its pre-accident level. The factors why this happened may be in doubt. Perhaps Mr Boan's sedentary life, lack of physical activity and his increase in weight played a part. In any event, the fact is clear that Mr Boan's OSA was aggravated by the accident and continued at a level which disabled him. The trial Judge was entitled not to accept Dr Cameron's view that the continuing OSA was due entirely to his obesity. 24 The trial Judge found that the headaches were associated with Mr Boan's altered jaw geometry. There was adequate material before the Court to justify that conclusion. In a report dated 16 April 1996, Dr A Lynham, the Maxillofacial Registrar at the Princess Alexandra Hospital reported, inter alia:- "8. In regard to his residual disabilities: the chronic temporomandibular joint pain/headaches may be a permanent disability, and will possibly require further medical treatment. … 11. Temporomandibular joint pain/headaches can indeed be a long-term condition, requiring both medical and dental treatment in the future." 25 Robert Foster, a dental surgeon, reported that Mr Boan suffered from right and left side temporal headaches and that Mr Boan's injuries "have precipitated the undeniable symptoms of Temporomandibular Joint Dysfunction Syndrome". Mr Foster reported that, if left untreated, Mr Boan's condition would deteriorate. In this aspect of the matter, also, Dr Cameron's opinion that the headaches were unrelated to the accident seemed inconsistent with the facts. 26 Mr Boan's headaches were perhaps his most immediately incapacitating disability. His condition was supervised by his general practitioner, Dr C J Currie. Dr Currie considered that the headaches were so painful and disabling that he continued to prescribe Panadeine Forte notwithstanding that the heavy level of analgesics itself interfered with Mr Boan's functioning and also gave rise to abnormal liver functioning. On 23 March 1999, Dr Currie reported:- "Since his motor vehicle accident he has suffered headaches and as soon as his head rests on the pillow he develops neuralgic type head pains. Although on the 14th January, 1999, he stated his headaches were a bit easier he was still waking up feeling sick and was using six to eight Panadeine Forte per day for control of pain. He has been on Prozac, Indural and tried other non-steroid anti-inflammatory tablets, anti-depressants and Tegretol to try to control his headaches and pain. These would, doubtless, affect his stomach and gastro intestinal lining. A presumptive diagnosis of gastritis and oesophagitis was made and he was treated with Maxolon tablets and Ranitidine tablets 300mg twice a day. Blood tests taken on the 30th March, 1998, have shown abnormal liver function tests and while this is due in part to fatty infiltration of the liver I am certain the high amounts of medication have also played a part in the abnormal liver enzymes that doubtless also contribute to his bilious nausea and indigestion also. It is likely that this will be ongoing and he will need gastroenterology review and long term medication." 27 The trial Judge accepted that Mr Boan would benefit from a great deal more orthodontic treatment and some psychological counselling. His rounded award of $41,000 for future medical expenses took into account $7,144 for regular consultations with his general practitioner, $23,218 for medication, $6,521 for prosthodontic and orthodontic work, $1,800 for psychological counselling, and $2,350 for cosmetic surgery for the removal of the scars. It is clear that the trial Judge formed the view that Mr Boan's headaches were likely to be with him for the remainder of his life. 28 The trial Judge first turned to s 79A of the Motor Accidents Act, 1988 ("the Act"). He used the expression "a most severe case" instead of "a most extreme case". However, as this occurred in a long and complex oral judgment, I am satisfied that it was just a slip of the tongue. His Honour allowed 35 per cent of the maximum figure. Counsel for the appellant has submitted that the figure should have been no more than 20 per cent. That submission would have been well founded had counsel's reliance on Dr Cameron's evidence been justified. It was not. The accident had changed Mr Boan from an active working man to one whose health and enjoyment of life had been very much diminished. In my opinion, his Honour's discretionary percentage was well within the range available to him. 29 The next item was past wage loss. The trial Judge assessed this roughly on the basis of his earnings at the tea-tree plantation, $326 per week net, or $15,000 per annum net. His Honour calculated 4½ years from the accident to the trial and awarded a cushion or buffer of $65,000. This allowance was certainly not overgenerous. I would not interfere with his Honour's award, save that his Honour overlooked the sum of $19,972 gross actually earned by Mr Boan during 1996 and 1997. The failure to take that sum into account was a slip and should be corrected by adjusting the damages awarded for the net wage loss. 30 The trial Judge next calculated future wage loss up to age 50. His Honour took into account the limited income which Mr Boan had been earning as a labourer bus driver at the tea-tree plantation. His Honour discounted the result by 30-35 per cent for very high vicissitudes. 31 In my opinion, if one accepts the trial Judge's view, for which there was ample justification, that Mr Boan's ability to work had been destroyed or largely destroyed by the accident, his Honour's award cannot be described as unduly generous. By limiting the award for calculation to age 50 and by applying a discount of 35 per cent, his Honour appropriately took into account relevant future possibilities. 32 The trial Judge allowed past out of pocket expenses of $9,274. There is no challenge with respect to this. The trial Judge allowed $41,000 in respect of future medical expenses. I see no error in respect of this. The trial Judge had to make an assessment as to the future with respect to matters such as future medication and psychological counselling. An assessment of the future is always difficult. I see no error in the factors which his Honour took into account. 33 The last issue raised concerns the carer's allowance in accordance with the principle enunciated in Griffiths v Kerkemeyer (1977) 139 CLR 161, as varied by the provisions of s 72 of the Act. It is the object of s 72 to restrict such allowances to instances where the need is long term and to exclude claims where the services would have been provided regardless of the motor accident. These objects are given specific effect in subs (2) and (6) which I need not set out. 34 The trial Judge said that the parties had agreed that the appropriate rate was $15 per hour and adopted that rate. There is no dispute about that. His Honour then referred to Professor Broe's evidence that allowance should be made for 21 hours per week of actual carer help and 2 hours per week for a carer's overseer or manager. The trial Judge did not, however, accept Professor Broe's estimate. He made these observations and findings:- "… It has been contended, on behalf of the defendant, that he conceded in cross-examination that he, the plaintiff, his dad and Charlie, split the housework, and each puts his shoulder to the wheel and does whatever has to be done. And that was agreed to. Charlie, however, seems to be a bird of passage … Also, the general lifestyle of this plaintiff does not fit fairly and squarely into the usual Griffith v Kerkemeyer calculations of somebody having three regular meals a day and living an ordered existence. As I have said, he has been more than somewhat careless in his choice of male company. I am also satisfied that not all of his need for care will be attributable to the motor vehicle accident. … But doing as best I can, it seems to me that the only fair way to compensate the plaintiff is to provide a cushion in respect of all care that he has needed in the past and will need in the future, directly or consequentially referable to the motor vehicle accident. That cushion is $50,000." 35 His Honour did not describe any particular care which, in his view, Mr Boan required. The evidence on the issue was imprecise and conflicting. Jennifer Mallett gave evidence that, before the accident, Mr Boan did his own cooking, washing, cleaning and shopping but that, currently, Mr Boan's father or Charlie Payne looked after the household tasks which included washing, cooking or mowing the lawn. Ms Mallett said that she assisted with the shopping, the banking and such tasks. However, the trial Judge expressed reluctance to accept her evidence. 36 Mr Boan gave this evidence in cross-examination, as to the circumstances which prevailed in his current house:- "Q. It would be reasonable to say, wouldn't it, that you and he [Mr Boan's father] share the tasks? A. Yeah, we all do our own bits. … Q. You do your bit, he does his bit? A. Yep. Q. Jennifer does her bit when she's there? A. Yep. … Q. You see that as a normal arrangement come to by people who are living in the same place and sharing the same facility? A. Yeah, that's correct." 37 This is a difficult case to assess because of the imprecision with which the claim was presented. Ms Mallett's evidence was reasonably clear but his Honour doubted her evidence. 38 Some allowance should be made but, in my view, the evidence which has been given is too imprecise to justify the allowance of $50,000. The trial Judge did not make findings which would justify it. Mr Boan's evidence was vague as to the assistance received and was conflicting. Mr Boan's father and Charlie Payne did not give evidence. Jennifer Mallett gave clear evidence but her evidence was, in the view of the trial Judge, not convincing. In all the circumstances, I would reduce the carer's allowance to $25,000. 39 It was put in written submissions on behalf of the appellant, which, however, were not elaborated on in oral argument, that Mr Boan had failed to mitigate his damages. It is sufficient to note the submission and to say that I am satisfied that Mr Boan did not fail to take any step by way of treatment or otherwise which a reasonable person in his position would have taken. Mr Boan did not fail to take any reasonable step of the type enunciated in s 39 of the Act. 40 Counsel for Mr Boan has raised, by way of notice of contention, a number of matters going to both substance and credit. It is sufficient to say that, although I agree with counsel that the trial Judge made some statements which could be the subject of debate, I am satisfied, on the whole, that his Honour's award of damages was well-based and fair. In the circumstances, I would amend his Honour's award only to take account of the slip in relation to the calculation of past wage loss and of the lack of findings justifying the substantial allowance given for carer's allowance. 41 Counsel should, within 14 days, bring in short minutes dealing with the adjustments necessary to give effect to these reasons for judgment and also dealing with the issue of costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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