Askraba v Transport Accident Commission
[2021] VCC 1904
•1 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-00455
| IVKA ASKRABA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 October 2021 | |
DATE OF JUDGMENT: | 1 December 2021 | |
CASE MAY BE CITED AS: | Askraba v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1904 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – paragraph (a) of the definition of “serious injury” – pain and suffering consequences –injury to the left foot.
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries and Anor v Poljak [1992] 2 VR 129; Richards & Anor v Wylie (2000) 1 VR 79
Judgment: Leave granted pursuant to paragraph (a) of the definition of “serious injury”.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Ms M Williams | Zaparas Lawyers |
| For the Defendant | Mr J Batten with Ms J Clark | HWL Ebsworth Lawyers |
HIS HONOUR:
Introduction
1Ivka Askraba seeks leave to commence a proceeding to recover damages for injuries allegedly suffered in a transport accident. She does so under s93 of the Transport Accident Act 1986 (“the Act”). Originally, the injuries were said to amount to a “serious injury”, as defined in paragraphs (a) and (c) of the definition for that expression. However, Ms Askraba did not rely on paragraph (c) in the hearing before me.
Circumstances
2Ms Askraba is aged seventy.[1] She is separated from her husband and now lives alone in Chadstone. She has two adult children and four grandchildren.
[1] Her date of birth is January 1951
3She was born and raised in a small town in Bosnia. Her first language is Croatian. After eight years of formal schooling, she undertook courses in sewing and typing. She worked as a typist in Sarajevo until the outbreak of the Balkan War in 1992. She, and her husband, then fled Serbia.
4In 1996, Ms Askraba, her husband and children arrived in Australia as refugees. She devoted her time to the raising of her children. Her experiences of the Balkan War affected her psychologically. She suffered from depression. She was cared for by a psychiatrist. In 2000, she started receiving the disability support pension. In 2008, Ms Askraba and her husband separated.
The accident
5The fact of a collision between a motor vehicle and Ms Askraba is not disputed. The extent of the collision is. She describes the accident as follows:[2]
“On the afternoon of Sunday 23 December 2018, my ex-husband visited my home in Chadstone. After lunch, we went for a walk. We walked on Waverley Road, then reached the T-intersection of Waverley Road and Power Avenue.
I noticed a blue Mazda being driven by a woman along Power Avenue. She was waiting to turn right into Waverley Road. The car was stationary, and so we proceeded to walk across Power Avenue to continue on Waverley Road.
Suddenly, the car came towards us. I put my hand out to stop it, but the vehicle kept rolling forwards, striking my right leg and causing me to fall to the ground. My ex-husband was also knocked over.
I believe the car ran over my left foot as I was lying on the road. I was shocked and my left foot was extremely painful. When I tried to get up, I was unable to put my weight on my left foot.”
[2] Affidavit sworn 8 September 2020 at paragraphs [15]-[18]
6Ms Askraba attended a nearby medical clinic. During the night, her left foot swelled and became more painful. She attended the Monash Medical Centre and stayed overnight. Her foot was x-rayed. The x-rays disclosed a fracture of the fourth metatarsal. She left the Centre wearing a CAM walker or moon boot.
7Despite the boot, her foot continued to be painful, stiff and swollen. She attended the outpatient clinic at the Dandenong Hospital. She was assured the fracture was healing and surgery was not required.
8Ms Askraba started seeing her general practitioner, Dr Zelko Lovric. He prescribed Mobic and Panadol Osteo. Dr Lovric has not referred Ms Askraba to any specialist practitioner, including a physiotherapist, regarding her foot.
Current condition
Pain
9The pain in her left foot is no longer constantly present. It was constantly present when she swore her first affidavit in October 2020. However, by September 2021, it was no longer present all of the time.
10She often complains of the pain to her daughter and to her friend, Mirsada Bakalovic. To Mr Pai, she described her symptoms as dull and aching and mainly when weight bearing.
11During re-examination, she gave an instructive description of her pain while walking:[3]
Q:“So from the 200-250 metre mark, after you started, to the end of the kilometre, would you describe to His Honour what you were experiencing?---
A:When I start to walk the first symptom when I notice and I’m walking a little bit longer, is that the sensation that the foot – the sole of my foot starts to swell. It feels like I’m walking on kind of a cushions and then the pain start to increase, especially at the part when I have the fracture in my foot and it starts to increase and becoming sharper and sharper. And, after a while, if I still continue to walk, that pain starts to spread in my foot, in my leg.”
[3] Transcript (“T”) 42
Treatment
12Ms Askraba continues to see Dr Lovric.
13In January 2020, she saw a psychiatrist, Dr Vasilija Kojadinovic. Owing to the restrictions caused by the pandemic, she has seen this psychiatrist only once. In that session, she was taught breathing techniques and strategies to manage her anxiety, particularly around cars.
Medicines
14Ms Askraba dislikes taking medicines. They created problems with her stomach. By October 2020, she was still taking Mobic but only once or twice a fortnight. At about that time, she stopped taking any medicine except a blood pressure medicine. However, frequently, she rubs a herbal cream, “Against the Pain”, on her foot for pain relief. She uses the cream before and after shopping or whenever she must stand longer than usual.
Walking
15Before the accident, Ms Askraba walked five kilometres or more on most days. Occasionally, there was a flare-up of pain which prevented her from walking for a day or two. She loved walking. It made her feel better. It also helped keep her weight and blood pressure under control.
16Recently, she experimented with walking:[4]
“I wasn’t really going to do some shopping in the supermarket. Actually I wanted to go there to test myself how far can I walk and how far am I able to go and I noticed that approximately after 200-250 metres the pain started to increase and I had – I started to have difficulties walking.”
[4] T42
17She continued walking to the supermarket, a distance of about a kilometre from her home. By then the pain was unbearable and she called her friend to collect her and take her home.
18Ms Bakalovic commented:[5]
“I have seen her struggling to walk. I can see the pain on her face. She is often seated when we met up now. I can see that she has put on weight.”
[5] Affidavit sworn 13 October 2021 at paragraph [9]
Knees
19Since about 2019, both knees are painful from time to time. After arranging imaging, Dr Lovric referred her to a surgeon for an opinion. He opined her knee pain resulted from favouring the right leg.
Emotionally
20Ms Askraba was treated for depression and anxiety between 2000 and 2009 or 2010. She was prescribed anti-depressant medicines. Leading up to the transport accident, her psychological state was mainly “fine”. She remains scared and anxious around traffic. She does not like crossing the road.
Sleep
21If Ms Askraba is on her feet a lot during the day, the pain in her left foot disrupts her sleep. In any event, about every second night, the pain in her foot wakes her. By September 2021, she described her sleep as remaining poor. Since the issue was not examined during her oral evidence, I assume the above bases remain unaltered.
Weight
22Ms Askraba finds it difficult to control her weight. She is inactive. She eats too much when she is anxious and sad.
Daily living
23Ms Askraba lives alone in a one-bedroom unit. She does her own housework. She cannot stand on her feet for too long. Her daughter commented:[6]
“As a homemaker, the plaintiff was always concerned with keeping her space tidy and organised. Since the transport accident, I recently observed a decline in these standards … .”
[6] Affidavit sworn 8 October 2021 at paragraph [3]
24Cooking and cleaning take her longer because she works in short bursts to avoid standing too long. Her neighbours and friends sometimes help her with the cooking.
Social activities
25Before the accident, Ms Askraba volunteered at the Croatian Community Services Centre and attended there monthly. She also attended when the Centre held a special function or event. She would work in the kitchen, preparing meals and serving lunch. She also attended its social events, including dances. Since the accident, and owing to her injuries, she no longer attends at all.
26Again, before the accident, she visited an elderly Croatian woman between one and three times a week. She would sit with her, providing company. They would talk. They would lunch at a restaurant. She would walk with her. They would attend community activities. She would help her with small tasks (e.g. making the bed and turning the mattress). Since the accident, she stopped visiting because of her injuries. Even if physically able, these visits cannot now resume on the same basis because recently the woman has taken up residence in an aged care facility.
27Before the accident, Ms Askraba attended the Croatian Catholic Church or the Mary Immaculate Church in Chadstone. Until she removed the CAM walker, she did not attend the church. After its removal, and not during the restrictions due to the pandemic, she resumed attending, but less frequently. When at church, she cannot kneel to pray. The fact that her inability to do so or even walk about the church building points to an adverse impact on her religious experience when attending church.
Grandchildren
28Before the accident, Ms Askraba visited her daughter and her children regularly. They live in Berwick. Now, she still visits them and drives to do so, but the majority of visits occur when her daughter and grandchildren visit her. She no longer plays with the grandchildren. Generally, she will sit in a chair. This immobility prevents her from taking her grandchildren to a park to play.
Treating practitioners
Dr Zelko Lovric
29Dr Zelko Lovric has been Ms Askraba’s general practitioner since October 1999.[7] In his first report, Dr Lovric set out seven areas of complaint, including Major Depression and Anxiety and osteoarthritic pain in both feet. He gave oral evidence, partly to explain the differences between a handwritten and typed version of his second report.
[7] Reports dated 6 December 2019 and 22 August 2021
30Based on what Ms Askraba told him, Dr Lovric considered she suffered a crush type of injury when the car ran over her left foot.
31Organically, he diagnosed chronic soft tissue injury and pain in the left foot and ankle.
32Dr Lovric’s assessment of Ms Askraba remained unchanged in 2021 from that in 2019:[8]
“She [has] developed chronic pain, stiffness and swelling of the left foot, following the transport accident, and this has reduced her ability to stand for long periods, drive longer distances and walk without pain. This, I believe will reduce her ability to continue her voluntary work … she now has chronic left foot pain and is very anxious and panicky … She will need ongoing analgesic and intermittent anti-inflammatory medication. She may need review by an orthopaedic surgeon; however, as the fracture has healed, I believe that surgical treatment is not a viable option. She may need referral to a pain specialist and possibly participation in a pain management program.”
[8] Report dated 8 December 2019 at p2
33During 2019 and 2020, Ms Askraba experienced “some increased pain” in her right knee. MRI scans were taken on 23 January 2020 and showed degenerative changes. Dr Lovric considered this pain was due to her favouring the right leg/knee when walking due to her chronic left foot pain. With conservative treatment, there was gradual improvement with periodic flare-ups.
34Again organically, his long term prognosis was uncertain. She would need analgesics, occasional anti-inflammatory medicine and possibly physiotherapy over the long term.
35Ms Askraba was treated by a psychiatrist, Dr Udovicic for nine or ten years until about 2010.
36For years, she has suffered from left hallus rigidis. Dr Lovric treats it conservatively, believing surgery will not help. When the condition “flares-up” due to standing too long or walking too far, she takes paracetamol and, sometimes, anti-inflammatory medicine.
Dr Vasilija Kojadinovic
37Dr Vasilija Kojadinovic is a consultant psychiatrist. On referral from Dr Lovric, she saw Ms Askraba on 23 January 2020[9] and has not seen her since.
[9] Report dated 25 January 2020
38Dr Kojadinovic considered Ms Askraba’s mental state was stable following her separation from her abusive husband in 2010. The accident caused a relapse such that she was showing symptoms of General Anxiety Disorder. She recommended four areas of treatment.
Medico-legal practitioners
Associate Professor Marinis Pirpiris
39Associate Professor Marinis Pirpiris is an orthopaedic surgeon. At the request of the parties, on 1 May 2020, he examined Ms Askraba for the purposes of an impairment assessment.
40Ms Askraba complained:
“… of significant pain and stiffness in the left fifth toe and continued stiffness and discomfort in the left fourth toe. There was pain over the foot was over the anterolateral dorsum of the foot, which radiated from the middle of the dorsum of the foot to the toes and over the plantar aspect on the medial aspect of the foot … .”
41On examination, Associate Professor Pirpiris found wasting in the left calf compared with the right. Ms Askraba had neutral dorsiflexion and 50 degrees of palmar flexion of the left ankle. There was tenderness over the third, fourth and fifth toes and over the metatarsal heads with 10 degrees of inversion and 5 degrees of eversion. She complained of significant pain when moving into the extremes of the range and crepitus in the subtalar joint.
42As to the fourth and fifth toes, at the metatarsophalangeal joint, there was 5 degrees of dorsiflexion and none of plantarflexion.
43Organically, he diagnosed a fracture of the fourth metatarsal of the left foot with malunion and soft tissue injury to the foot and ankle with foot and ankle stiffness. The latter was possibly a crush injury.
44Associate Professor Pirpiris considered Ms Askraba would experience stiffness in her ankle, hindfoot and foot for the medium to long term. He thought a multimodal treatment program might help but, overall, her prognosis was poor.
Mr Vasudeva Pai
45Vasudeva Pai is an orthopaedic surgeon. At the request of the defendant’s solicitors, he examined Ms Askraba on 20 September 2021.[10]
[10] Report dated 27 September 2021
46On examination, he found the movements of her left ankle were reasonable. There was slight stiffness on inversion and eversion. Of the fourth toe, there was a reduction in movement by half with the appearance of malunion with rotational deformity. Clinically, the fracture of the fourth toe had healed. The fifth toe had 75 per cent of normal movement.
47He had reports of x-rays and MRI scans of both feet and knees taken between 2003 and 2021.
48Mr Pai diagnosed mild malunion of the fractured neck of the left fourth metatarsal. As background to this injury was pre-existing arthritis of the small joints of the left foot including hallux rigidus of the great toe.
49He considered Ms Askraba’s residual symptoms of toe deformity and decreased range of movement in the little and fourth toe and pain related to the forefoot as due to the accident. However, the hindfoot and great toe stiffness existed before the accident.
50Mr Pai does not recommend any specific treatment at present. If Ms Askraba’s forefoot symptoms worsen, Mr Pai considers she may require a metatarsal bar and instep support fitted in her shoes.
51At to prognosis, Mr Pai said:[11]
“… the prognosis for the fracture is good; however, the cause for her functional limitation is multifactorial and cannot be explained as being substantially on the basis of the fracture of the fourth metatarsal, and there is some contribution from constitutional hallux rigidus in both feet, left being worse than the right, and she has put on weight since the event and the restrictions related to COVID are not helping and there are some psychosocial factors. She has moderate osteoarthritis in both her knees.”
[11] At p 7
52From that passage, I would interpret Mr Pai as saying the prognosis overall is poor. Where he uses the word “substantially”, I consider he means “completely” or “nearly completely” rather than to suggest that the contribution of the traffic accident was insubstantial.
Dr Albert Kaplan
53Dr Albert Kaplan is a psychiatrist. On 12 May 2020, he examined Ms Askraba on behalf of the parties for the purposes of an impairment assessment.[12]
[12] Report dated 19 May 2020
54From his mental state examination, the abnormal features were a preoccupation with the changes she had undergone through the accident and intrusive thoughts of the accident. She appeared depressed and somewhat agitated.
55Dr Kaplan diagnosed an Adjustment Disorder with Mixed Anxiety and Depressed Mood with some traumatisation features.
56As to prognosis, he considered Ms Askraba would be prone to depression and anxiety while her pain and disability continues. Since her traumatisation features had persisted for eighteen months and apparently remained unaltered, the prognosis was unfavourable.
57As to treatment, Dr Kaplan thought a trial of supportive psychotherapy and anti-depressant medicine might assist although both were unlikely to substantially alter her condition.
Legal considerations
58The meaning of “serious” in s97(17) of the Act is explained in Humphries & Anor v Poljak:[13]
“To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such a consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.”
[13] [1992] 2 VR 129 at 140 per Crockett and Southwell JJ
59In Richards & Anor v Wylie[14], where Winneke P said:
“If, as a result of an injury, a person loses a limb, it will, no doubt, often occur that one of the consequences of such a loss or impairment will be the development of a mental response to that impairment or loss. That is one of the consequences which, along with others, the Court will need to evaluate in determining whether the loss or impairment of a body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as ‘serious’ … Thus, the ‘serious injury’ defined by sub-paragraph (a) of sub-s.(17) can, I think, have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function.”
[14] (2000) 1 VR 79 at 87-88. See also Buchanan JA at 90
Discussion
Traffic accident
60There is no dispute the traffic accident occurred as described by Ms Askraba. The defendant concedes the fracture of the metatarsal occurred in this accident but disputes the allegation the car ran over her left foot.
61Presumably, on 9 January 2019, Ms Askraba told Dr Lovric that the car ran over her foot[15]. This detail does not appear in the brief note of her admission to Monash Emergency.
[15] Report dated 8 December 2019
62Ms Askraba is unsure whether the car ran over her foot. After saying the car ran over her foot, she was pressed in further cross-examination:[16]
Q:“I put it to you the car did not strike your left foot or your left ankle or your left heel? –
A:I know that I fell. It happened very quickly and that I couldn’t get up and I couldn’t step on that foot of mine again.”
[16] T23
63In re-examination, Ms Askraba confirmed her uncertainty about what happened, but repeated the immediate swelling and severe pain experienced in the foot.
64It is clear the car struck Ms Askraba on her right side and she fell on her left side, causing immediate damage to her left foot. It is the confining of the damage to that foot which raises the issue of the car running over the foot. It was the significant swelling over the fifth metatarsal, foot and ankle which raised the possibility of a crush injury for Associate Professor Pirpiris.
65I am satisfied that the car did run over her foot, even though Ms Askraba is uncertain. Her uncertainty is understandable for the accident was unexpected, sudden, short‑lived and traumatic.
Injury: organic
66Dr Lovric diagnosed soft tissue injury to the left foot and ankle with pain. He does not mention the fracture or its malunion as a source of pain.
67Associate Professor Pirpiris diagnosed, first, a malunited fourth metatarsal of the left foot and, second, soft tissue injury to that foot and ankle with stiffness. He associated the soft tissue injury with the possibility of a crush injury.
68Mr Pai agreed with the malunion of the fourth metatarsal, describing it as mild and placing it at the neck on the left side. He noted the pre-existing arthritis of the small joints of the foot. Without nominating a description, he attributed the symptoms of toe deformity and decreased range of movement in the little and fourth toe, and the pain related to forefoot, to the accident. He attributed the stiffness in the hindfoot and great toe to a pre-existing condition.
69Plainly, the pain and stiffness of the great toe existed before the transport accident. Also before the accident, Ms Askraba’s left heel was arthritic for a small calcaneal spur was noted in December 2018.
70Interestingly, the defendant noted both specialists say there is some malunion, but this was not confirmed by the radiology. I daresay the specialists made their diagnoses on the basis of their examinations, the history and complaints of Ms Askraba, and the reports of the various investigations. Both practitioners saw the report of the x-rays taken on 24 December 2018, where the radiologist noted:[17]
“There is a fracture at the junction of the distal head and distal shaft of the fourth metatarsal with mild medial angulation of the distal fracture fragment.”
[17] Report of Dr Ken Lau dated 24 December 2018
71Mr Pai alone saw the report of 5 August 2021 where there is no mention of malunion.
72I could not possibly go behind their opinions of malunion based on my interpretation of the radiological reports. I must reject that submission.
73I must also reject the speculation of Ms Askraba’s counsel as to why there is a malunion.
74The traffic accident caused the fracture of metatarsal of the left foot. The fracture did not unite properly. The accident caused soft tissue damage to the left foot generally. The main problem is with the fourth and fifth toes. They are painful and restricted in movement. The accident has caused more stiffness in the foot and ankle than existed beforehand.
Injury: psychological
75Since 2000, Ms Askraba has received a disability support pension for her depression.
76Owing to the accident, Ms Askraba developed an Adjustment Disorder. Part of the symptoms of the disorder relate to the accident itself, while the rest relate to her reaction to the physical injury she suffered. She started treatment in January 2020 but the pandemic intervened. The prognosis is unfavourable.
77Pausing there. There is no basis to find she has suffered a “serious injury” in terms of paragraph (c). Not even her counsel sought to support such a finding.
Paragraph (a)
78The consequences of an injury and impairment require a comparison between the pre and post-accident situation. Where the consequences are adverse, then there is an examination of what has been lost, diminished and retained.
79For Ms Askraba, the experience of pain is the main consequence, for the other consequences flow from it. She told Associate Professor Pirpiris the level of her pain was five to six out of ten. This is a significant level of pain. Although not always present, it is largely so.
80Dr Lovric’s opinion is that Ms Askraba’s right knee problem is a consequence of her favouring that leg because of the injury to the left foot. I accept that that is so, but the degree of pain is minor.
81The left foot injury has seen limited treatment. Initially, there was some treatment at Monash Emergency and the Dandenong Hospital. She wore a CAM Walker for about two months. Judging from his reports, there were limited attendances in 2019 on Dr Lovric, about four.
82Dr Lovric has not referred her to any foot or ankle specialist. He considered surgery twelve months after the accident, but thought the best option was to continue conservative treatment.
83Ms Askraba has not received any physiotherapy. Although prescribed strong pain‑relieving medicines in the earlier stages, she no longer takes any pain‑relieving medicines now.
84In paragraph 32 of these reasons, I quoted Dr Lovric’s view of Ms Askraba. Briefly, he summarises her current state and outlines possible future treatments.
85Ms Askraba now wears normal shoes. There is no present need for orthotics. She can walk up to a kilometre if absolutely necessary, but it is painful after the first 200 to 250 metres. If Mr Pai thought she could walk a kilometre without pain, then he was incorrect. Before the accident, she walked for pleasure. It also helped to keep her weight down.
86Her inactivity following the accident has led to a gain in weight. In May 2020, it was about 10 kilograms. I do not know whether her weight has further increased since then. In September 2021, it was 112 kilograms. This is a significant weight for a person only 159 centimetres in height.
87According to Associate Professor Pirpiris, the prognosis for the left foot is poor. No one suggests there should be surgery to cure the malunion.
88The effect of the transport accident has left Ms Askraba with a somewhat isolated and limited existence. The experience of pain has stopped the lengthy walks she once enjoyed. She is now very restricted in the distance she can walk. Apart from its enjoyment, walking kept her weight down. It does not now.
89Ms Askraba is cut off from the Croatian community centre, her friends there and the social activities she enjoyed there, including dancing. She is restricted in the frequency of her attendances at church and what she can do when there.
90She restricts her driving, but can drive to Berwick to see her daughter and grandchildren. She drives a car with an automatic transmission which limits the need to use her left foot. However, it is more her family travelling to visit her than the other way.
91Even though Ms Askraba lives in a small unit, cleaning takes longer and has declined in quality. She cooks for herself, but is helped by friends and neighbours with her cooking for she is limited in how long she can stand.
92Her sleep is regularly interrupted by pain and this has been so for at least two years. Although not spelt out, this is surely as source of upset for her.
93Since the accident, Ms Askraba is more anxious generally. In the presence of motor vehicles, her anxiety rises to fear and panic. She is afraid to cross the road. Living in Melbourne, she is wary of leaving her unit because of the presence of motor vehicles. These are the kind of psychological consequences which are legitimately considered in the context of paragraph (a). Since the prognosis of Dr Kaplan is unfavourable, these consequences are likely to persist for the rest of her life.
94Overall, I consider the consequences of the impairment of the body function associated with her left foot are at least very considerable and, as such, she has suffered a “serious injury”.
Conclusion
95I will grant Ms Askraba leave to commence a proceeding to recover damages. I will hear the parties on the form of my orders and the question of costs.
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