Barton v Walsh Earthmoving Pty Ltd
[2013] VCC 1861
•2 December 2013
| IN THE COUNTY COURT OF VICTORIA AT WODONGA CIVIL DIVISION | Revised Not Restricted Suitable for publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-01882
| MARK BARTON | Plaintiff |
| v | |
| WALSH EARTHMOVING PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 3 and 4 October 2013 | |
DATE OF JUDGMENT: | 2 December 2013 | |
CASE MAY BE CITED AS: | Barton v Walsh Earthmoving Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1861 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left thumb and left hand – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Grech v Orica Australia Pty Ltd (2006) 14 VR 602
Judgment: Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti SC with Mr R Morrow | Nevin Lenne & Gross |
| For the Defendant | Mr R Middleton SC with Ms L Glass | Wisewould Mahoney |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the defendant on 26 February 2010.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is impairment to the left thumb and left hand.
6 The plaintiff relied upon two affidavits, sworn 26 November 2012 and 12 August 2013. The plaintiff was cross-examined. I have not summarised the plaintiff’s affidavits or his evidence. I will refer to the plaintiff’s relevant evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]s134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a)“the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant;[2]
(b)“the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c)“the consequences” to the plaintiff of his impairment to the left thumb and left hand in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[2]s134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3]Barwon Spinners (op cit) at paragraph [33]
[4]s134AB(38)(b) and (c)
9 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[5]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[6]
[5][2009] VSCA 181
[6]Ibid at [42]
10 The test for “serious”, as set out in paragraph (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
11 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[7]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[8]
[7]s134AB(38)(j) of the Act
[8] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
12 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors Podolak[9] and Grech v Orica Australia Pty Ltd.[10]
[9][2005] VSCA 33
[10](2006) 14 VR 602
The issues
13 Counsel for the defendant informed the Court that this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range. Further, the plaintiff’s credit is in issue.
Investigations
14 On 1 March 2010, an x‑ray of the left thumb showed:
“There is transversely orientated fracture involving the proximal shaft of the terminal phalanx of the thumb. There is slight separation at the fracture site and the distal fragment is displaced slightly volarwards. The joint is fair.”
15 On 23 March 2010, an x‑ray of the left hand reported:
“Two K – wires transfix the distal phalanx of the thumb. Alignment appears near anatomic. A true lateral has not been performed. No metalware complication.”
The medical evidence
Albury Wodonga Health
16 On 26 February 2010, Dr Yvette Bassin (Locum Registrar) confirmed a ring block was placed and the wound dressed and immobilised.
Mr Greg McCartin
17 A Procedural report from Mr McCartin, plastic surgeon, confirmed that on 27 February 2010, the left thumb was operated upon. Mr McCartin reported that circulation in the hand was satisfactory at the end of the procedure.
Ms Michelle Campbell
18 In March 2010, Ms Campbell, physiotherapist, reported to Mr McCartin that she had treated the plaintiff following surgery.
Mr Murray Stapleton
19 Mr Stapleton, plastic surgeon, saw the plaintiff at the request of the defendant insurer in May 2012 and August 2013. Mr Stapleton diagnosed a crush injury with fractures involving the plaintiff’s left thumb. In August 2013, the plaintiff reported that his left thumb was painful in cold weather and very painful when it is accidently bumped. Mr Stapleton said the thumb has a reduced range of movement. Sixty per cent of the thumb has a partial transverse sensory loss and the power of the plaintiff’s grip is diminished. The plaintiff requires no treatment, his thumb condition is stabilised and he has reached maximum medical improvement. Mr Stapleton said that the plaintiff was employable. He could work as a truck driver or a plant operator; however, heavy lifting, pushing and pulling would be a problem for him.
Mr Kenneth Brearley
20 In July 2013, Mr Brearley examined the plaintiff at the request of the plaintiff’s solicitor. Mr Brearley said the plaintiff suffered a transverse fracture of the proximal shaft of the distal phalanx of the left thumb treated by K-wiring to immobilise the fragments. A satisfactory result had been obtained but some residual symptoms persist. He said there was a slight permanent impairment and loss of function of the left hand and thumb as a result of the injury. The plaintiff has difficulty in gripping and grasping firmly.
21 The plaintiff reported difficulty with activities of daily living such as doing up buttons and tying his shoe laces. He said he was unable to do the heavier aspects of housework such as vacuuming, sweeping and mopping which his parents do. He has difficulty doing the dishes as objects slip through his grip. He is unable to do any gardening as he cannot handle tools such as a spade. He cannot do much work on the farm with the cattle, such as trimming tails and hooves.
22 The plaintiff reported that recreationally he was unable to go fly fishing as he cannot tie the flies on and he cannot grip the rod properly. He was unable to go hunting and cannot use a knife to prepare the animals. He does less 4‑wheel driving now.
23 Mr Brearley said the injury to the plaintiff’s left thumb does preclude or restrict him in all the abovementioned activities. It was his view that these restrictions will be for the long term. He thought the plaintiff was capable of performing his pre-injury work as a plant operator. Mr Brearley said the injury to his left thumb does not restrict him with regard to employment. It is a hindrance but he will be able to do his previous work. He said the plaintiff’s condition was stabilised. There will be no further improvement and the disabilities he has now will persist and so will the impairment.
Mr Damian Ireland
24 Mr Ireland, plastic hand surgeon, examined the plaintiff at the request of the plaintiff’s solicitor. Mr Ireland reported restricted motion of the left thumb following a crush injury and fracture of the phalanges of the left thumb. Neuropraxia digital nerves left thumb. Mr Ireland said the plaintiff had a residual impairment of the left thumb as a result of the injury which comprised restricted motion at all three thumb joints and comprised sensation of the digital nerves in the pulp of the left thumb. The plaintiff reported that he was no longer able to tie fishing flies or effectively use a fishing reel. He had difficulty holding a rifle. He had lost some manipulative power and gross prehensile gripping strength with his left hand but Mr Ireland said this is difficult to record. The plaintiff reported functional difficulty using a broom or shovel or other similar heavy manual activities. Mr Ireland said the plaintiff’s disabilities were permanent.
25 Mr Ireland said that gripping had been affected, fine dexterous movements have been impaired by restricted motion at the IP joint of the left thumb and restricted sensation in the pulp of the thumb. Otherwise, the other activities have not been substantially affected attested by his return to work as a manual labourer two years following the injury.
26 Mr Ireland said the plaintiff had a physical capacity for employment. He said the plaintiff’s head injury, intellectual capacity and previous education preclude him from employment in anything other than manual work. He said the prognosis for any further improvement is poor and the condition is unlikely to deteriorate.
Credit of the Plaintiff
27 It was accepted that the plaintiff suffered a brain injury following a motorbike accident in 1997. The evidence was that prior to the bike accident, the plaintiff did not complete Year 10 at school. He commenced an apprenticeship as a chef, which he did not complete, and has worked in a variety of jobs including farm work, truck driver, rodeo organisation, chef and charity worker. At the time of the accident, he was employed as a plant operator /labourer.
28 The plaintiff attended medical appointments with Mr Brearley and Mr Ireland with his carer. Mr Ireland described the plaintiff “as a slightly intellectually handicapped person who showed no tendency to exaggerate his symptoms.” Mr Ireland said the plaintiff had difficulty recalling chronological details and had little knowledge of his previous treatment. It was unclear whether Mr Ireland was referring to the treatment as a result of the bike accident or the workplace injury.
29 The plaintiff was consistent in reporting his injuries to the doctors whom he saw and the consequences of those injuries. While there may have been some inconsistencies reported to doctors in relation to the level of medication the plaintiff was taking, given the plaintiff’s intellectual disability, the inconsistencies were minor. Further, to accept the inconsistencies I would have to accept that the doctors recorded accurately the information they were told by the plaintiff.
30 The plaintiff was not cross-examined on a substantial number of the consequences referred to in his affidavit which means that I can accept those consequences. The plaintiff answered all questions put to him in a direct and frank manner and made concessions. He was keen for the Court to understand the consequences of his injury. I accept the plaintiff was an honest witness.
Analysis of the evidence
31 I must make the assessment at the time of hearing the application. Accordingly, I place greater weight on the most up to date medical evidence of Mr Stapleton, Mr Brearley and Mr Ireland.
32 It was not an issue that the plaintiff suffered a compensable injury. All doctors accepted the plaintiff suffered a crush injury with fractures involving his left thumb. The plaintiff had reached maximum medical improvement. The plaintiff’s left thumb condition had stabilised. The plaintiff’s dominant hand was the right, although the plaintiff’s evidence was that prior to the accident he was ambidextrous. The plaintiff was no longer working and was in receipt of a Disability Pension on the recommendation of a neuropsychologist.
33 On examination, Mr Stapleton noted the plaintiff’s left thumb movements as follows:
“Interphalangeal joint 0-30 degrees. Metacarpophalangeal joint 10-20 degrees.”
34 Mr Stapleton said 60 per cent of the thumb has a partial transverse sensory loss.
35 Mr Brearley said there was diminished sensation over the pulp of the thumb and that sensation over the dorsum was normal. He said there was slight limitation of full flexion of the metacarpophalangeal joint and also of the distal interphalangeal joint. There was full extension of the distal joint and of the metacarpophalangeal joint. The plaintiff was unable to oppose the thumb tip to the little finger, the thumb being three centimetres short of the little finger. Testing with a Jamar dynamometer indicated an average grip strength of 35 kilograms for the right hand and arm compared with 35 kilograms for the left side.
36 Mr Ireland said there was no obvious deformity of the thumb. There was restricted motion at all three thumb joints. Sensation was mildly restricted on both sides of the thumb pulp measuring 7 millimetres on the radial side and 8 millimetres on the ulnar side. There was no evidence of flexor tenosynovitis. Mr Ireland attempted to measure grip strength with a Jamar Dynamometer. However, the variation on the left exceeded 20 per cent and invalidated the test.
37 Counsel for the defendant submitted that this amounted to an exaggeration by the plaintiff. I do not accept that submission. Mr Ireland, in the same report, said the plaintiff was cooperative and pleasant and showed no tendency to exaggerate his symptoms.
38 All doctors accepted the plaintiff’s complaints about his injury. Mr Stapleton said the plaintiff would have difficulty with heavy lifting, pushing and pulling. Mr Brearley said the plaintiff had a slight permanent impairment and loss of function of the left hand and thumb as a result of the injury. He has difficulty in gripping and grasping firmly. Further, the injury to his left thumb does preclude or restrict him in his social, domestic and recreational activities.
39 Mr Ireland said the restrictions upon the plaintiff’s social, domestic and recreational activities are permanent. He accepted gripping was an issue for the plaintiff. Fine dexterous movements had been impaired by restricted motion of the interphalangeal joint of the left thumb and restricted sensation in the pulp of the thumb.
Pain and suffering consequences
40 It is necessary for me to consider whether the pain and suffering consequences satisfy the statutory test.
41 The plaintiff said that most of the pain is in the back of the thumb, it is constant and travels into his left wrist and continues down his forearm. The thumb is very painful in cold weather. He has a loss of feeling in the thumb and cannot tell the difference between sharp and blunt, hot and cold. He has limited movement in the thumb.
42 He reported the pain he suffered to the doctors he saw. He told Mr Brearley he has frequent pain in the thumb. He told Mr Ireland of pain on the dorsum of the thumb which is episodic and precipitated by cold weather. It lasts for four hours and is eased by Panadol. He told Mr Stapleton the left thumb is painful in cold weather, and if he accidentally bumps it. All doctors accepted the plaintiff’s level of complaint of pain.
43 The plaintiff was consistent in reporting to the medical witnesses the pain he suffered. I accept the plaintiff’s evidence that the pain he suffers is modest pain, more painful in cold weather and when accidently bumped.
44 The plaintiff was cross examined on the medication he took. On occasions there were inconsistencies between his viva voce evidence, what doctors reported as to the level of medication he took and/or the contents of his affidavits on this point. Notwithstanding this, I gained the impression that at all times the plaintiff was attempting to give honest and accurate answers to the questions asked. I ultimately came to the view that to the extent there were inconsistencies in his evidence, it was more likely explained by his lack of sophistication, his head injury and the effluxion of time.
45 Mr Brearley recorded that the plaintiff takes occasional Panadol for his pain, two or three times a week. Mr Ireland recorded his current treatment involves Panadol, non-prescription analgesia, one to two per day. Mr Stapleton reported the plaintiff takes no medication apart from an occasional requirement for analgesia after heavy work or a knock that involves the left thumb.
46 I accept the plaintiff’s evidence that he was prescribed Panadeine Forte from Dr Kosky, a general practitioner in Nagambie. I also accept the plaintiff’s evidence that he avoids taking medication given the effects medication had on his stomach following his motorbike accident in 1998.
47 Given the inconsistencies in the plaintiff’s evidence about the medication he took, I conclude that it is more likely that he takes Panadol as required and Panadeine Forte when the pain is severe.
48 None of the medical witnesses suggested his treatment was inappropriate, or that there was any further treatment available to the plaintiff.
49 I accept that the level of treatment the plaintiff has had is at the low end of the scale which may largely be due to the nature of the injury.
50 The plaintiff reported to all doctors he saw, a reduction in the range of movement in the left thumb and diminished powers of manipulation. He reported a reduction in sensation to over 60 per cent of his thumb to Mr Stapleton. He told Mr Stapleton that he could not tell the difference between sharp and blunt, rough and smooth. He told Mr Brearley he had loss of sensation over the pulp of the thumb. He reported to all doctors a reduced power of his grip.
51 The plaintiff said he was restricted in the activities he performed when working with the Abbey Group, between June 2010 and May 2012. He was employed to operate a scraper. He used his right hand on the controls and used his left hand to guide the steering wheel. He had difficulties securing the steering wheel firmly with his left hand. If he worked all day on the scraper, by the end of the day his left thumb was “knackered”. He was also required to perform shovel work, and broom work. He was restricted in these activities because he was unable to properly grip the broom and shovel with his left hand, due to the movement of his thumb.
52 The plaintiff said he was also required to perform lifting duties, such as lifting pumps, whacker plates, vibrating plates and rolls of sealer. He said he always had to be on the left hand side of lifting the pump. When he was lifting a whacker plate, four people would lift the plates and he would have to be on the left hand side, normally at the back. If he knocked his thumb, the pain, particularly on the tip of his thumb, sent a continuous pain through his knuckle into his forearm.
53 Mr Stapleton accepted that heavy lifting, pushing and pulling would be a problem for the plaintiff. Mr Brearley said he had difficulty in gripping and grasping firmly. Mr Brearley said he would have difficulty in particular gripping and holding and said the injury to his left thumb was a hindrance to him but he would still be able to do his previous work. Mr Ireland said the plaintiff had lost some manipulative power and gross prehensile gripping strength with his left hand, which is difficult to record. This causes functional difficulty using a broom or a shovel or other similar heavy manual activities. Mr Ireland said fine dextrous movements have been impaired by restricted motion at the interphalangeal joint of the left thumb and there is restriction in sensation in the pulp of the thumb.
54 I accept that these are consequences which the medical witnesses said would affect his work, but would not preclude him from his pre injury work. The evidence is that the plaintiff is no longer employed. I also accept that these are consequences which would affect his domestic and recreational activities. I also accept that the restrictions on lifting would affect his domestic and recreational activities.
55 Counsel for the defendant relied upon the Rehabilitation Outcome Report of May 2010 and submitted that the report inclusive of photographs militated against a serious injury to the thumb. As to the report it is irrelevant as it is dated May 2010. I am required to assess the plaintiff at the time of hearing the application. Further, the photographs were of little assistance because the photographs were staged for the purpose of the report.
56 The plaintiff’s evidence was that prior to the work injury, he engaged in a number of outdoor recreational activities including fly fishing, hunting and four wheel driving which, because of his injury to the left hand and thumb, he is no longer able to pursue to the same degree.
57 Prior to the injury, he would go fly fishing every couple of weeks to the Kiewa River, Lake Eildon and other places in the area. Because of the thumb injury, he was unable to tie flies on the line, operate little gadgets such as tie-off and tools to make flies. He said he had practised with the fly rod out on the lawn and in the paddock but could not get the fly on the line. He cannot cast properly and cannot do the figure-eight, when winding the fly in. He agreed that he had not attempted fly fishing since 2010. He said there was no point if he could not tie the flies on the line. Both Mr Brearley and Mr Ireland accepted that the plaintiff would be restricted in this way.
58 Prior to his left thumb injury, the plaintiff enjoyed hunting for deer, pigs and rabbits, and controlling vermin. He owns guns which he uses for hunting. He has difficulty using the firearms. He uses a rifle with his right hand but uses the left hand to hold onto the footstock to aim the rifle. Since the injury, he has difficulty aiming the rifle because of the reduced grip in his left hand. He suffered increased pain in the left thumb because of the recoil.
59 He has difficulty dragging carcasses because he is unable to get a proper grip and cutting up carcasses is difficult. He holds the knife in his right hand and holds onto the legs of the carcasses with his left hand, but does not have the requisite grip. Skinning and pulling the meat out is normally performed with his left hand which is now a very difficult and painful task. Although he has been hunting in the last six months, he has been the designated driver.
60 Before his injury, he used to shoot ducks and quail with a shotgun, using his left hand. He now avoids shotgun shooting.
61 He reported these restrictions to Mr Brearley and Mr Ireland. Both doctors accepted that the impairment to his left hand and thumb could preclude or restrict his recreational activities.
62 The plaintiff’s evidence was that he has difficulty in driving, as he cannot get a proper grip on the steering wheel with his left hand and relies heavily on his right hand. He agreed he told Mr Brearley he did less four wheel driving. He said this was because if he is by himself it is too difficult to change tyres with a “buggered thumb” in rough terrain.
63 The plaintiff’s evidence was he was ambidextrous, and in the past he relied on his left hand to use screw drivers, hammers, wrenches, spanners and levers. Now, because of the reduced strength in his left hand, he tends to rely on his right hand. He has difficulty opening and tightening jars. He has difficulty catching items such as balls and a set of keys. He has difficulty performing a range of tasks including squeezing toothpaste out of the tube on to his toothbrush with his left hand, using a bottle opener, using a petrol pump, using a squeegee to clean the windscreen of his car and using nail clippers.
64 His ability to garden is affected. He has difficulty getting a proper grip on the front handle of the catcher. His ability to use the whipper snipper is affected. He uses his right hand to manipulate the controls but has difficulty using his left hand to hold onto the handle bars. He reported difficulties to the doctors holding onto brooms and rakes. He tries to assist his father in the vegetable garden but finds digging very awkward as he is unable to get a grip on the shovel and it constantly slips out of his hand. This is the same for any tool where he is required to exert pressure.
65 The plaintiff said he continues to try to do things around the house. He reported to the doctors whom he saw, difficulties washing dishes as objects slip through his grip; holding onto brooms and mops and using shovels. He cannot do the heavier aspects of the housework such as vacuuming, mopping and sweeping which his parents do. The doctors accepted that these restrictions were reasonable.
66 The plaintiff said in relation to personal matters, he had difficulty doing up buttons on his shirts; people tend to assist him. He now wears short pull-on boots. Previously he wore a high boot but he cannot grip the long boot to pull the boot on. He has difficulty eating using a fork and often uses his fork in his right hand. He is now a very slow eater. He cannot tie up shoe laces; however, he conceded that he only had one pair of lace up shoes.
67 The plaintiff said he avoids using his left thumb when washing his hair.
68 The issue was whether the consequences of the plaintiff’s injury met the test of seriousness, in that they could be considered to be “more than significant or marked and as being at least very considerable” when compared to other cases in the range.
69 I accept that the plaintiff has residual symptoms with his left thumb and left hand including pain, most days, for which he is required to take Panadol. He also suffers from loss of sensation and loss of function of the left hand and thumb as a result of the work injury.
70 The plaintiff is now 41. Prior to his injury, he relied on his physical dexterity to perform his work, social, domestic and recreational activities. The plaintiff is now restricted in these aspects of his life. He returned to manual work for two years, but with some difficulties. He has difficulty washing dishes and using brooms, mops and shovels. He can no longer vacuum or perform heavy domestic work. His ability to garden has been affected. He struggles with personal care tasks such as buttoning his shirts and using a fork. He can no longer go fishing or hunting and has difficulty driving.
71 All doctors accepted that his recreational and domestic activities would be affected by his disability.
72 For a man of the plaintiff’s age, with an intellectual disability and a lifestyle defined by outdoor and physical pursuits, this represents a significant loss.
73 Taking all the evidence into account, I am satisfied that it is fair to describe the pain and suffering consequences of the plaintiff’s left thumb and left hand as being “more than significant” or “marked” and properly regarded as “very considerable” when judged by comparison with other cases in the range.
74 In reaching that conclusion, I have made a comparison with other cases in the range of possible impairments. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38H) of the Act. I am satisfied that the left thumb injury is permanent, given the evidence from all medical witnesses.
75 The plaintiff therefore satisfies the narrative test for pain and suffering.
76 In such circumstances the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering in respect to the left thumb and left hand is successful.
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