Director of Public Prosecutions v St VINCENT'S Care Services Ltd
[2021] VCC 1035
•30 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02451
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ST VINCENT'S CARE SERVICES LTD |
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JUDGE: | O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13, 14, 16 April 2021 | |
DATE OF JUDGMENT: | 30 July 2021 | |
CASE MAY BE CITED AS: | DPP v ST VINCENT'S CARE SERVICES LTD | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1035 | |
REASONS FOR JUDGMENT
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Subject:CRIMINAL LAW
Catchwords: Accused operator of aged care facility; Whether accused had failed to ensure non-employees (residents) were not exposed to risk to health and safety; Risk to residents leaving facility without accused’s knowledge; Whether risk arose out of accused’s undertaking; Whether proposed measure of requiring residents to ‘sign out/sign in’ was reasonably practicable; Whether proposed measure unduly restricted rights of residents.
Legislation Cited: Occupational Health & Safety Act 2004; Criminal Procedure Act 2009; User Rights Principles 2014 (Cth); Aged Care Act 1997 (Cth);
Cases Cited:Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
Judgment: Guilty
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr G. Hevey | Office of Public Prosecutions |
| For the Accused | Mr R. O’Neill | Minter Ellison |
HIS HONOUR:
Introduction
1St Vincent’s Care Services Ltd is charged on Indictment No. K10198766 with one charge of failing to ensure persons other than employees were not exposed to risk contrary to s 23 of the Occupational Health & Safety Act 2004.
2On application made on behalf of the accused and with the consent of the prosecution, her Honour Judge Chambers made an order pursuant to s 420D of the Criminal Procedure Act 2009 (‘CPA’) that the trial of the accused be heard by a judge alone without a jury. The trial commenced on 13 April 2021 and upon arraignment through an authorised representative of the accused, Mr Robert Bateson, the accused pleaded not guilty.
Background
3St Vincent’s Care Services Ltd (‘SVCS’) operates an aged care facility known as St Vincent’s Care Werribee at 240 Hoppers Lane, Werribee. The facility provides a residence for elderly people who want or need assistance and care due to medical or mental health problems or, in some instances, a decrease in their mobility. The level of assistance required by each resident differs markedly.
4On 21 February 2018, Mr William Keating became a resident at the facility. Mr Keating was then 88 years of age, having been born on 5 June 1929. One of the reasons Mr Keating was moved to the facility was to provide him with the opportunity to walk around both within and outside the facility. He did this regularly with the assistance of a wheeled walking frame.
5Mr Keating apparently enjoyed his walks and was described by his daughter as being in ‘pretty good’ health. He did not suffer from any form of dementia. He did not suffer from any specific medical ailment.
The incident
6At about 8.38am on Saturday 10 March 2018, Mr Keating left SVCS for a walk, taking a newspaper with him in the basket of his walker. About 9.30am, Mr Keating’s daughter, Ms Jennifer Luckhurst, arrived with her husband to visit Mr Keating. They discovered that he was not in his room and began searching for him inside the facility, as well as in the area around the outside of the building where Mr Keating would ordinarily walk.
7Staff were notified at around 10.15 to 10.30am and further attempts were made to locate Mr Keating, but to no avail. CCTV footage confirmed that he had gone outside at about 8.38am but there was no footage of him returning.
8At around 11am, Mr Keating was found about 100m from the facility, having fallen into an area that was being excavated by road builders. He had not been seen when the car park was earlier searched because he was about 450mm below ground level. It was only the waving of a newspaper that caught the attention of those searching for him. Apparently, Mr Keating had been attracted to a Bobcat being used in the road construction and had ventured off the footpath to have a closer look.
9As a result of his fall, Mr Keating was badly injured and was transported to the Royal Melbourne Hospital, where he remained for approximately four weeks.
The charge
10After an investigation conducted by Worksafe, SVCS was charged in the following terms:
The Director of Public Prosecutions charges that ST VINCENT’S CARE SERVICES LTD (ACN 055 210 378) at Werribee in Victoria on the 10th day of March 2018 as an employer failed, so far as was reasonably practicable, to ensure that persons other than employees were not exposed to risks to their health and safety arising from the conduct of its undertaking.
Particulars:
(a)St Vincent’s Care Services Ltd (ACN 055 210 378)) (“SVCS”), is and was at all relevant times an employer within the meaning of section 5 of the Occupational Health and Safety Act 2004, employing Munro Westraadt.
(b)The residential care facility, located at 240 Hoppers Lane, Werribee 3030, (“the facility”) was at all relevant times operated by SVCS, providing care to residents, including Mr William Keating.
(c)SVCS failed to provide an appropriate procedure to monitor residents leaving the facility unsupervised for short periods.
(d)There was a risk of injury or death due to residents leaving the facility without being appropriately monitored insofar as, if any resident was injured or became ill whilst outside the facility, that resident may not be detected as absent at the earliest possible time.
(e)It was reasonably practicable for SVCS to ensure that persons other than SCVS employees were not exposed to risks to their health and safety, by providing a monitored “Sign out/Sign in” register recording the name of the resident, the time they left the facility, the expected time of return, the destination, the actual time of return, whether they were accompanied and their signature.
(f)Persons exposed to risk of injury or death included, but were not limited to, William Keating.
Procedure
11Section 420E of the CPA provides that in a trial by judge alone, the trial judge may make any decision that could have been made by a jury and that such a decision by a trial judge has, for all purposes, the same effect as a verdict of a jury.
12Section 420F stipulates that, in a trial by a judge alone, the judgment must include the principles of law applied by the trial judge and the facts on which the judge relied.
13Throughout the trial and in reviewing the evidence, I have been acutely conscious of the fact that I occupy the role of both judge and jury. In performing that role I have kept steadily in mind that the accused entity SVCS is entitled to the presumption of innocence; that to prove the charge the prosecution must prove each element of the offence to the highest standard known to law, beyond reasonable doubt; that at all times the onus of proof remains with the prosecution; and that the accused does not have to prove anything.
14It has been particularly important to keep an open mind and to focus only on the evidence adduced by the parties. I have not read the depositions or accessed any extraneous material. I have tried as best I can to put myself in the same position as a jury in attending to the evidence.
15Fortunately, much of the evidence was agreed between the parties and I have not been required to resolve any disputes involving credibility or reliability between witnesses. Mr Hevey, on behalf of the prosecution, read in the statements of two prosecution witnesses with the consent of counsel for the accused, Mr O’Neill, who indicated that he did not wish to cross-examine either witness. Mr Hevey, again with the consent of the defence, also summarised the evidence of the Worksafe investigators and in so doing tendered as exhibits photographs, CCTV footage and some documents to complete the Crown case.
Prosecution Opening
16In his opening on behalf of the prosecution Mr Hevey set out much of the factual background I have already summarised.
17He referred in terms to s 23 of the Occupational Health and Safety Act 2004 which requires employers ensure that people other than employees are not exposed to risks to health and safety arising from the conduct of their undertaking.
18By reference to the elements of the offence, it is alleged that:
(a) SVCS on 10 March 2018 was an employer;
(b) there was a risk arising from the conduct of the accused’s undertaking of operating an aged care facility to the health and safety of non-employees, including Mr Keating;
(c) the accused failed to take identified measures which would have eliminated or reduced that risk; and
(d) it was reasonably practicable in the circumstances for the accused to have taken those measures.
19The prosecution case was that the accused entity SVCS was by its nature a residential facility for the aged and more vulnerable. SVCS recognised the importance of knowing whether residents were within the facility at any given time, and it failed to have an appropriate system in place to monitor unaccompanied residents leaving and returning to the facility.
20Mr Hevey put it in the following way:
‘By not recording the time of departure, the expected time of return, the destination and the actual time of return the accused was exposing persons other than employees, the residents, including Mr Keating … to risk of injury or death. Such exposure arose because as there was no system in place to know how long a resident was likely to be absent for, or an estimated time of return, there was no mechanism whereby staff could realise that a resident should be looked for, and to ascertain whether any delayed return might be caused by the resident having been injured or worse. The longer that it was not realised that a non-employee resident was missing, and that therefore that no effort was being made to search for or locate the resident, the greater the exposure to risk of injury, aggravation to illness or injury, or death to that person.’[1]
[1] Summary of Prosecution Opening 4 December 2020, p 5.
21It would be alleged, Mr Hevey suggested, that it was reasonably practicable in the circumstances to have a procedure in place for the assessment of residents’ ability to leave the facility, and for recording and monitoring the times of their coming and going to ensure that they returned as planned. It was said that this ‘simple and practical’ measure would have eliminated or reduced the alleged risk. He indicated that the prosecution would adduce evidence showing that since the incident of 10 March 2018, such a procedure had in fact been implemented.
Defence Response
22In response, Mr O’Neill on behalf of SVCS identified the primary issues likely to arise in the trial as:
(a) Whether the risk arose from the conduct of the accused’s undertaking;
(b) Whether that the provision of a sign-out book would have reduced or eliminated such a risk to the health and safety of residents;
(c) Whether the provision of a sign-out book was a reasonably practicable measure.[2] It was suggested that such a procedure would only provide ‘at best, minimal protection’ and would impose on the privacy, dignity and freedom of movement of residents of the facilities. It was noted that security arrangements were already in place for ‘at-risk’ residents.
[2] Mr O’Neil suggested that it was important to note that the sign-out book procedure had only been implemented in response to an improvement notice.
23It was not in issue that SVCS was an employer at the relevant time or that the residential facility was operated by SVCS and provided care to residents including Mr Keating.
Summary of Prosecution Evidence
Jennifer Luckhurst
24The first witness relied upon by the prosecution was Jennifer Mary Luckhurst, who is the daughter of William Keating.
25Ms Luckhurst deposed in a statement acknowledged on 10 July 2018[3] that her father had only been a resident at the facility since 21 February 2018. He had been a resident of another aged care facility, but she had not been happy with the standard of care there and so had arranged for her father to move to the accused’s facility in Werribee. At the other facility there had been no area for her father to walk, however at the accused’s facility he could walk along an internal walkway leading to the private hospital, and on a footpath around the car park outside.
[3] Exhibit A.
26Ms Luckhurst understood her father’s medical condition to be fairly good, albeit that he was ‘a bit thin’. He was active and moved around quite a lot once he had moved to this facility. He walked using a walking frame. He was self-sufficient in dressing and showering. He did not suffer from dementia and was not being treated for any particular medical problems.
27Ms Luckhurst had visited her father on a number of occasions. On two of those they went for a walk outside of the building on the footpath. This occurred on weekends and at that time there was no one at reception. Her experience during the week was that there was always someone at reception.
28Ms Luckhurst said that she had been told by staff at SVCS that she had to sign in when visiting her father. This was a system that she had been accustomed to at other aged care facilities. When she took her father for a walk outside, she would tell a staff member that she was leaving but would not sign him out. She would, however, sign Mr Keating out if she was taking him out in the car.
29She also stated that when she would return from a walk with her father she would take him to his room, and if there was someone around she would tell them that she and her father were back. She would only do this, however, if someone was around to tell. She was not aware of any restrictions on residents coming and going as they wished.
30At about 9.30am on Saturday, 10 March 2018, Ms Luckhurst arrived at SVCS with her husband to visit her father. She could not find him in his room and contacted both of her brothers to see if either had picked him up. They had not. The staff were not able to say where he was, so she decided to do the walk that she would normally take him on to see if he was around there.
31She walked that path twice and went into the private hospital to check with reception whether her father was there. She was told that he had not been seen by anyone. Ms Luckhurst and her husband went back to the facility to have a further look, this time with some staff assisting. About 10.20am, Ms Luckhurst and some staff members viewed the CCTV footage from reception, which showed Mr Keating leaving through the front door at 8.38am. A decision was made at that point to ring the police. Ms Luckhurst went with her husband out into the car park again with the intention of driving around to see whether or not they might find her father further afield.
32As she was getting into her car, Ms Luckhurst’s husband noticed a newspaper flying up in the air, and then the top of Mr Keating’s head. They ran in that direction to find that he had collapsed on the ground. He was bleeding from his head and some of the blood had started to congeal. It was a very hot day. Ms Luckhurst called an ambulance, as did a nurse from the facility. The ambulance was delayed because there had been some confusion as to the address; however, the police arrived within five or so minutes.
33Ms Luckhurst said that it was distressing to see her father in that condition, especially because the ambulance took some time. Her father was taken to the Royal Melbourne Hospital where he was found to have suffered severe trauma to his head, a fractured nose, and six broken the ribs. He remained in hospital for four weeks. Ms Luckhurst described additional injuries, including a fractured arm, a deep cut to the left side of the leg and multiple other cuts and abrasions. Mr Keating required a skin graft in respect of the abrasions to his head.
34Mr Keating returned to the facility in the first week of April 2018. Thereafter, he was not allowed outside on his own and did require additional care with respect to showering and dressing.
35Ms Luckhurst also deposed that the system for taking her father out since that incident had changed. The new process involved signing in when she arrived and then signing out when she and her father left. They would let someone know where they were going and when returning, her father would be taken back to his room. They would again sign in to confirm this.
36Finally, Ms Luckhurst commented that the staff at SVCS ‘were fantastic in their approach and follow-up’.
Munro Westraadt
37The second witness relied upon by the prosecution was Ms Munro Westraadt, a Division 1 Registered Nurse whose role at SVCS involved medication rounds, discharge, admissions, general nursing duties and the overseeing of other staff. She is qualified in nursing and critical care.
38In a statement acknowledged 21 June 2018,[4] Ms Westraadt deposed that on 10 March 2018 she began working at 7am on the second floor of the facility, with residents who had complex care needs. She was accompanied by two patient care workers.
[4] Exhibit B.
39According to Ms Westraadt, Mr Keating was ambulant with a wheel frame which she saw with him at all times. She was not aware that Mr Keating went walking outside alone.
40She deposed that residents who wanted to walk outside could do so in a fenced off area on the ground floor, from which it was not possible to get out onto the street. She said that a gate between the facility and the hospital was always locked.
41Between 8.15 and 8.30am, Ms Westraadt was asked by Mr Keating if she could change his dressing. She told him she could do so between 9.30 and 10.30am, which he acknowledged. Sometime around 10.15–10.30am Ms Westraadt walked past Mr Keating’s room, as dressings were always done in the bedroom, and found the door ajar. She thought Mr Keating was sitting in his chair but could not see his face. When she ran into Mr Keating’s daughter, she was told that it was in fact Ms Luckhurst’s husband in the chair and that they did not know where her father was. Ms Westraadt told her he may have gone somewhere to read and that she would look for him.
42Ms Westraadt said that Mr Keating had told her earlier in the day that he was going for a walk. She believed he meant walking from the dining room to one of the lounges as she had never seen him walk outside.
43Staff began to look for Mr Keating after his daughter still could not find him. Ms Keating’s daughter said she would look for him outside, and Ms Westraadt told her that staff would look both inside and outside. Ms Westraadt and other staff looked for Mr Keating on the second floor, the ground floor, the vegie patch, and the dementia unit. Following this, they viewed CCTV footage and realised Mr Keating had left the building. She then phoned the police.
44Ms Westraadt said that while she was on the phone to police, another staff member informed her that they had found Mr Keating outside in a bad condition. She subsequently hung up the phone with the police. She was advised that Mr Keating’s daughter had phoned an ambulance.
45With Mr Keating at this time were his daughter and a pathology nurse. Ms Westraadt took over from the latter. An ambulance was phoned again. The Manager, Sherryn McMahon, was also phoned and she attended. Ms Westraadt stayed later than her usual 3.15pm finish time on that day to assist.
Other evidence
46The prosecution adduced CCTV footage consisting of two files of images taken at the reception area of SVCS and two files of images taken in the carpark on the morning of the incident.[5] At 8.38am the footage shows Mr Keating at the reception counter with a newspaper. He can be seen placing the newspaper in the basket of his walker and leaving through the front door of the facility.
[5] Exhibit C.
47In footage of the car park in front of the reception area, Mr Keating can be seen walking along the footpath at various points before stopping and looking away towards an area beyond the range of the camera. Eventually, he moves out of view. In adducing this evidence, Mr Hevey pointed to the ease with which Mr Keating was able to leave the reception area and exit the facility.
48To illustrate the area at and around the facility and the site of Mr Keating’s fall, photographs taken by WorkSafe Investigator Mark Coverdale on 10 March 2018, together with an annotated satellite image, were tendered.[6] The photographs show the construction site at which Mr Keating was found, including the 450-millimetre drop where he fell. The photographs also show the uneven and excavated ground, debris, and incomplete temporary fencing around the site. In some of the photographs, the accused’s facility can be seen from the construction site.
[6] Exhibit D.
49The satellite image depicts the construction site, the facility, and surrounds. It is annotated with the distance from the entrance of the facility’s reception area to the site of Mr Keating’s fall, which is given as 91.2 meters.
50The prosecution also adduced two Falls Risk Assessment Tools created by SVCS relating to Mr Keating. Both summarise Mr Keating as a ‘High Falls Risk’. The first tool,[7] apparently created on 21 February 2018 and modified on 13 March 2018, states that Mr Keating has had ‘one or more’ recent falls ‘between 3 and 12 months ago’, was ‘taking one’ medication; ‘appears mildly affected by one or more’ listed psychological risk factors; has no or minimal cognitive impairment; and suffers from some dizziness or postural hypotension. Other than this, no risk factors are identified. The tool also sets out Mr Keating’s ‘usual care needs’. It is unclear from the document what modifications may have been made subsequent to 10 March 2018, but before 13 March 2018.
[7] Exhibit E.
51The second Falls Risk Assessment Tool,[8] apparently created 13 March 2018 and last modified on 20 March 2018, states that Mr Keating had ‘one or more’ recent falls in the last three months, and identifies one new risk factor: ‘Reports/observed difficulty seeing – objects/signs/finding way around’. There are also some minor changes to Mr Keating’s identified ‘usual care needs’. Mr Keating’s 10 March fall is recorded in these terms: ‘cause of fall unknown’.
[8] Exhibit F.
52The prosecution also tendered a WorkSafe Improvement Notice issued under the Occupational Health and Safety Act 2004 by inspector Francis Zawila.[9] The notice, dated 14 March 2018, alleges a contravention of s 23 of that Act on the basis that:
‘Persons other than employees are exposed to health and safety risk arising out of the conduct of the undertaking at the workplace.
I observed at this workplace that there is a risk to persons other than employees (residents) as no process has been provided to monitor residents leaving the facility unsupervised for short term reasons such as going for a walk or to an appointment, with regards to their return times, supervision requirements and destinations. There is a risk that a resident may suffer an illness or injury and their absence would not be detected which may result in the illness/injury becoming significantly more serious.’
[9] Exhibit G.
53The Improvement Notice directs that SVCS must implement measures to protect residents from ‘risks arising from leaving the facility unsupervised’, and indicates that:
‘Compliance may be achieved, but is not limited to, implementing a procedure whereby an assessment is made for any resident wishing to leave the facility unsupervised to ensure that they are able to do so and also a process for recording and monitoring the leaving and return times of the resident to ensure that they return as planned.’
54Mr Hevey submitted that this notice was relevant to the fourth element to be established by the prosecution, namely the reasonable practicability of steps that could have been taken to mitigate the risk said to exist.
55Finally, the prosecution tendered a SVCS document outlining the ‘Resident Leave from Facility Procedure’ dated 9 April 2018,[10] implemented following Mr Keating’s fall. The procedure applies to all staff. Its stated rationale is that:
‘Whilst residents have a rights [sic] and freedom of choice regarding personal outings from the facility, SVCS Werribee have a responsibility to monitor the safe return of residents, as far as reasonably practical.’
[10] Exhibit H.
56In brief, the procedure requires that:
· On admission or return to the facility, all residents be assessed to determine any risk factors associated with leaving the facility independently or with support, and that this information be recorded for future reference;
· A registered nurse discuss these risk factors with the resident and/or their family, and record their wishes in relation to the resident leaving the facility, independently or with support;
· On departing the facility, family escorts fill in the sign-in/out register, which shows (a) name of resident, (b) time out, (c) expected time of return, (d) destination, (e) actual time of return, (f) accompanied or not, and (g) signature;
· The Assistant in Nursing (AIN) on duty in the area in which the resident is living inform the registered nurse of the intended departure and expected time of return;
· The registered nurse or their delegate check the register periodically through the shift for the return of the resident;
· If the resident has not returned at the expected time and is unaccompanied, the registered nurse phone the resident or their next of kin to ascertain their wellbeing; and
· If contact cannot be made, the situation be escalated to the facility manager.
57The risk rating of this procedure is given as ‘medium’.
58Mr Hevey submitted that the ‘relatively speedy’[11] implementation of the procedure following the incident demonstrated that these measures were reasonably practicable, not prohibitively expensive, and should have been taken prior to 10 March.
[11] Transcript of Trial (13 April 2021), p 36.
No case submission
59At the close of the prosecution case, Mr O’Neill submitted on behalf of SVCS that there was no case to answer. It was contended that the evidence relied on by the prosecution was not capable of establishing the second element of the charge, to the effect that the risk alleged did not arise out of the accused’s undertaking. I rejected that submission and gave reasons which are not necessary to repeat here. Those reasons are available in a separate ruling.[12]
[12] DPP v St Vincent’s Care Services Ltd (Ruling No. 1) 2021 VCC.
Summary of defence evidence
60The defence tendered a six-page Care Plan created by SVCS for Mr Keating, dated 21 March 2018. The Care Plan sets out various considerations for staff in caring for Mr Keating.
61Mr O’Neill submitted that this document referred to broader aspects of care, in particular social and emotional care.[13] The Care Plan envisages social activities outside the facility that Mr Keating might participate in, such as going to clubs or hotels, eating out, and going on social visits. This was relevant to contentions to be put concerning the rights of residents to independence, freedom of movement and the like.
[13] Transcript of Trial (16 April 2021), p 97.
Prosecution final address
62Mr Hevey submitted that SCVS had breached s 23 of the Act by failing to act to reduce the risk of injury to non-employees. The prosecution case, he suggested, was put fairly and squarely on the basis that when you take on the responsibility of caring for a vulnerable elderly person, it is integral to providing that care that you monitor where that person may be. This was simply a matter of recording the exit and entry of those persons under your care into and out of the facility. What happened to Mr Keating is an illustration of what can go wrong when such a simple system is not in place.
63Counsel submitted that the risk the subject of the charge emanated from the failure of the accused to adequately monitor where those under its care were at any given time. The failure to know or record that Mr Keating had gone for a walk or his expected time of return on 10 March 2018 was a clear illustration of how the accused had breached of s 23.
64Mr Keating left the premises at 8:38am, unknown to any SCVS staff. No one at the facility became aware of his absence until around 10.15 to 10.30am, when his daughter had already been searching for him for 45 minutes. He was not found until 11am and that was only after an extensive search of the facility had initially failed to find him. Staff had to resort to reviewing CCTV footage and it was only the fortuitous circumstance of the waving of the newspaper that led to his being found. Were it not for Ms Luckhurst’s arrival with her husband, staff would have had no reason to initiate a search.
65Mr Hevey submitted that this was not a case of infringing the individual liberty of a resident, and that that kind of argument was a ‘total red herring’. The residents are not prisoners; they can come and go and are entitled to treat the facility as their own home. However, if the accused is not in a position to know when a resident will return, they are simply not in a position to care for them.
66That was the case for Mr Keating on the morning of 10 March 2018. Although that incident is not the subject of the offence, it was the catalyst that brought to the attention of the authorities the failure that does constitute this offence, and that failure is as described in the Act.
67Approximately two hours and twenty minutes had elapsed between the time Mr Keating left the facility and the time he was found. It was said that the fact that blood was congealing on the wounds he had suffered clearly indicated that he had been lying in a seriously injured condition for a considerable period of time. It was to be remembered that Ms Luckhurst had searched the car park area at around 9.30am and could not see him. Mr Hevey submitted that the only reasonable inference open on the evidence was that Mr Keating had fallen and injured himself before that first search. He lay in that position for what was submitted to be at least over an hour as a result of the risk that arose from the accused’s undertaking to the health and safety of nonemployees.
68The prosecution submitted that the accused had failed take steps to eliminate or reduce that risk. This would have involved the simple provision of a system of recording and monitoring residents’ comings and goings.
69The relevance of the subsequently implemented resident leave procedure was that it illustrated how quickly the facility was able to put in place a system which did eliminate all of the risk the subject of this charge. It is not to be used, as it might be in a case of negligence, as an admission. Rather, the implemented procedure shows that the specified measures were reasonably practicable.
70It ought not to have been left to Mr Keating’s family to sound the alarm. He was moved to this facility so that he could walk around. He could do so within the confines of the facility, but also in the outside surroundings. When he did so, the accused did not absolve itself of its duty to care for residents in the full sense. Caring involved knowing where people were, knowing when they were likely to return and, should they fail to return as predicted, the accused being in a position to make enquiries to ascertain their whereabouts and ensure they were okay.
71Counsel said that on 10 March 2018, Mr Keating was not okay. He was lying in a ditch with broken ribs, other broken bones and serious lacerations, and he was lying in that condition with no one looking for him for a considerable period of time. That was avoidable by taking the measures specified in the Improvement Notice and reflected in the subsequently implemented leave procedure, which constituted a reasonably practical means of obviating the risk.
72It followed that the accused should be found guilty of this offence.
Defence final address
73In his final address on behalf of the accused, Mr O’Neill contended that the real cause of the 10 March 2018 incident was the failure of the building site operator to properly fence the site of Mr Keating’s fall.
74The facility operated by the accused was Mr Keating’s home. Counsel referred to and emphasised the rights of Mr Keating and other residents to freedom of movement, independence and dignity within their ‘home’. He said that the prosecution had failed to prove that the proposed monitoring and recording measure was reasonably practicable or that it was a suitable means of managing the risk without undue interference with residents’ human and statutory rights.
75In March of 2018, Mr Keating was relatively active and self-sufficient, was not being treated for any medical ailments and had been assessed as to his risk of falling. He had a comprehensive care plan based on that risk assessment, and his family knew that he went for walks outside the facility. It was submitted that SVCS had been assiduous in its approach to its obligations.
76Mr Keating was entitled to the same independence, dignity and freedom of movement as any other adult member of the community in the absence of any ‘specific vulnerability’ requiring further management (Mr O’Neill did note that following his fall, Mr Keating’s care plan was updated to address the vulnerability that had arisen from it). It was submitted that this entitlement to independence was a requirement of the law relating to aged care. Counsel referred to the Charter of Care Recipients’ Rights and Responsibilities, which at the time was to be found in Schedule 1 of the User Rights Principles 2014 (Cth) and ss 54.1-56.1 and s 96.1 of the Aged Care Act 1997 (Cth).
77Counsel emphasised specific rights set out in the Charter of Care Recipients’ Rights and Responsibilities, particularly those as to ‘personal privacy’, to live in a ‘homelike environment and to move freely both within and outside the residential care service without undue restriction’, to maintain ‘personal independence’, and ‘to accept personal responsibility for his or her own actions and choices, even though these may involve an element of risk, because the care recipient has the right to accept the risk and not to have the risk used as a ground for preventing or restricting his or her actions and choices’.
78Mr O’Neill also referred to the Quality of Care Principles to argue that it should not be assumed that the use of the word ‘care’ in the name of the facility means that every resident has the same needs. Nor should it be assumed that each resident needs to have the same balance struck between, on one hand, their health and security and, on the other, their independence and social well-being. The measure put forward by the prosecution was a uniform measure which is not nuanced to the individual requirements of each resident.
79Mr O’Neill also relied upon his arguments put on the no-case application to the effect that the alleged risk identified by the prosecution did not arise from the conduct of the accused’s undertaking.
80The accused submitted that it was not a self-evident proposition that providers of residential care need know where residents are at all times – in fact, this proposition was inconsistent with the User Rights. There was no expert evidence or industry practice evidence adduced by the prosecution to demonstrate that the operator should know where residents were at all times.
81It was said that requiring residents to say where they are going, with whom, and when they plan to be back is an impermissible interference with their independence, privacy, dignity, and freedom of movement. The social activities referred to at p 66 of Exhibit 1 were an example of the sorts of activities a resident may wish to engage in that would be interfered with. Mr O’Neill also gave the example of a resident signing out for 15 minutes only to decide to spend longer away, and argued that if a resident was required to return to reception and sign out again this would inhibit spontaneity and represent a real interference with their freedom of movement.
82Moreover, Mr O’Neill argued that a ‘sign out/sign in’ book was neither an effective measure nor reasonably practicable. An estimate of where a resident is going, how long they plan to be, and the reaction time of staff to their returning late are, it was said, variable considerations. Further, counsel pointed to administrative difficulties with such a book in that one book would be required at each of the facility’s two exits, and staff would be required to check both books. He raised questions as to the enforcement of the measure and submitted that, were residents to be prevented from leaving if they declined to fill in the book, this would represent an ‘extreme’ interference with their freedom of movement.
83If the sign-in, sign-out policy was not enforced, however, it was said that this would be no more of an effective measure than was already in place at the time of the incident. In support of this Mr O’Neill pointed to Ms Luckhurst’s evidence that she would sign her father out when she took him out in the car, but not when they went out for walks.
84Mr O’Neill argued that adults should be permitted to go where they want without having to account to others. He took this further, suggesting that the requirement to do so might open residents up to discrimination were they to record attendance at an event that revealed an element of their identity, for example their sexuality or their political views. Residents might opt instead to enter false information, undermining the effectiveness of the policy. It was further argued that spontaneity is a component of freedom of movement and the specified measure would inhibit or prevent residents from acting spontaneously, as they should be entitled to do.
85Counsel submitted, consistent with what was said in Vibro-Pile,[14] that the court should not allow the fact that Mr Keating came to harm on his 10 March 2018 walk to ‘outweigh’ all the times residents might go for walks without notifying staff and without coming to harm. What happened to Mr Keating was no more than illustrative of the risks that can occur and of the harm that is possible – however, there was no evidence that would enable the court to weigh the likelihood of such incidents against the benefits of residents’ freedom of movement. That, it was said, was a deficiency in the prosecution case.
[14]Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676.
86Mr O’Neill also relied on the good character of his client in the sense that SVCS has no prior convictions, has acted conscientiously and is less likely to have committed the offence.
87Mr O’Neill summed up his client’s case in the following way.
88Having regard to the human rights of residents and indeed their statutory rights as to their independence, their dignity, their freedom of movement, and spontaneity, the prosecution had not proven that the identified risk was created by SVCS. They had not proven that the measures set out in the improvement were a suitable or reasonably practicable way of managing such risk as there was without unduly interfering with the rights of residents.
89It followed that the accused should be found not guilty.
Analysis
90Section 23 of the Occupational Health & Safety Act 2004 is in the following terms:
An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.
91The offence consists of four elements:
(1) the accused was an employer at the relevant time;
(2) there was a risk from the conduct of the accused’s undertaking to the health and safety of non-employees;
(3) the accused failed to do something which would have eliminated or reduced that risk; and
(4) it was reasonably practicable in the circumstances to have taken steps to eliminate or reduce that risk.
92Before I could find SVCS guilty of failing to eliminate risks to the health and safety of non-employees, I would need be satisfied that the prosecution had proven all four of the above elements beyond reasonable doubt.
93The particulars associated with this charge are set out verbatim at paragraph 10 of these reasons. They allege that SVCS was an employer at the relevant time and operated a residential care facility providing care to residents including Mr Keating. Particular (c) alleges that the accused failed to provide an appropriate procedure to monitor residents leaving the facility unsupervised for short periods. Particular (d) alleges there was a risk of injury or death due to residents leaving the facility without being appropriately monitored. Particular (e) alleges that it was reasonably practicable for SVCS to ensure that residents were not exposed to that risk to their health and safety by providing a monitored ‘sign out/sign in’ register. Particular (f) alleges that those exposed to the risk of injury or death included, but were not limited to, Mr Keating.
94I will analyse the evidence and the arguments based on the evidence using the elements of the offence as a framework.
1. Was the accused an employer?
95There was no issue that the accused was an employer for the purposes of the Occupational Health & Safety Act 2004 as at the date of the charge, 10 March 2018.
2. Did the conduct of the employer’s undertaking cause the risk to the health and safety of non-employees (residents)?
96There are three parts to this element.
97The first part relates to the conduct of the employer’s undertaking. Here, there is no issue that the conduct of SVCS’s undertaking involved the operation of an aged care facility.
98The second part relates to the risk to health and safety. The prosecution say that SVCS’s undertaking created that risk by its failing to know where residents under its care were at any given time. What happened to Mr Keating well illustrated the nature of that risk.
99The defence say that the risk pleaded in this instance was a risk of ‘residents leaving the facility’ which is not conduct within the scope of SVCS’s undertaking. Rather, it is conduct by a resident in his or her private capacity. An aged care resident might face many risks in venturing beyond the facility, such as being hit by a car, becoming victim to a robbery, or falling. The risk of injury or death, the defence say, is created by matters external to the accused’s undertaking or its conduct. It is not created by anything done by SVCS in the course of operating the facility. The action of leaving does not create the risk; the risk arises from what occurs after the resident leaves.
100The defence also say that what happened to Mr Keating clearly demonstrates how the risk was external to the accused’s undertaking. The danger posed by the road works site and the failure to fence it were completely beyond the accused’s undertaking, yet that is where the real risk to Mr Keating lay.
101In my view, there can be, and there was, no question that the conduct of the accused’s undertaking involved caring for the vulnerable residents of its aged care facility. The name St Vincent’s Care Services aptly describes the nature of the accused’s undertaking. It speaks for itself.
102I do not accept that it is appropriate to afford the term ‘undertaking’ a narrow meaning. The legislation has generally been interpreted expansively, or alternatively, protectively. ‘Undertaking’ is a broad term, wider in scope than the term ‘workplace’. The care of a resident of the accused’s facility in my view does not stop when they walk out the door. I agree with the prosecution contention that part of the accused’s undertaking involved knowing the whereabouts of the residents under its care. For example, in an emergency residents need to be accounted for.
103There will of course be all sorts of risks to an aged care resident who ventures outside the facility. They are likely to be vulnerable to accidents and the like in a myriad of ways. But that is not the risk particularised or said to have been created by the accused’s undertaking. Rather, the risk is that if the resident becomes injured or ill whilst outside the facility, they may not be detected as absent at the earliest possible time and not receive the assistance they need at the earliest possible time.
104The unfortunate incident involving Mr Keating well illustrates that there is a risk created by not taking steps to ascertain when a resident leaves the facility, where they will be, and when they intend to return. Mr Keating’s family had moved him to this facility from another aged care facility, in part because he would be better able to walk both inside and outside. That was an aspect of the accused’s undertaking that attracted Mr Keating’s family to move him into that home in February 2018.
105Had Mr Keating’s daughter not decided to visit that morning, it is possible that Mr Keating may have lain in that ditch for longer than he did. It is not speculative to suggest that the delay in finding him was critical to his health and safety.
106I bear in mind that what happened to Mr Keating is intended to be illustrative only of the risk alleged to have been created by the accused’s undertaking. Nevertheless, that incident shows, in my view, how a risk of injury, serious injury or even death arises from not detecting a resident, who is by definition vulnerable, as absent from the facility at the earliest possible time.
107It follows that I am satisfied of this part of element two beyond reasonable doubt.
108The third part of the element two requires the prosecution to prove that the risk is to the health and safety of non-employees. Here, there is no issue that such risk as may arise, was a risk to the residents of the aged care facility. I am therefore satisfied of element two beyond reasonable doubt.
3. Did the accused fail to do something which would have eliminated or reduced the risk?
109With respect to this element, the law requires the prosecution to identify a particular measure which the accused should have put in place to address the risk. Here, that measure is particularised as providing a monitored ‘sign out/sign in’ register recording the name of the resident, the time they left the facility, the expected time of return, the destination, the actual time of return, whether they were accompanied and their signature.
110It is incumbent on the prosecution to prove beyond reasonable doubt that if the accused had put this measure in place then the risk to the health and safety of residents would have been eliminated or reduced. It is not enough to say that the risk might have been reduced if the accused had taken that measure.
111The prosecution tendered Exhibit G, being the Improvement Notice that was issued on 14 March 2018. That notice required SVCS to implement control measures to ensure that non-employees (residents) were not exposed to risks arising from leaving the facility unsupervised. On 9 April 2018 SVCS implemented a new procedure relating to residents’ leave involving a ‘sign out/sign in’ register. That procedure is set out in Exhibit H and summarised at paragraphs 55 to 57 of these reasons.
112The procedure in no way constitutes an admission by SVCS, because it was formulated in response to the Improvement Notice. That said, I accept Mr Hevey’s argument that the procedure illustrates how quickly and readily the facility was able to put in place a system which did eliminate the risk that is the subject of the charge, and which, in Mr Keating’s case, materialised.
113The carpark area outside the facility is not too large an area if one examines the satellite photograph which forms part of Exhibit D. Mr Keating was found 91 meters away from the front door. The carpark extends about half of that distance. Using his walking frame, Mr Keating was not going to be able to venture too far beyond the carpark. In my view, there needed to be a means of knowing if he was not back within a reasonable time so that the necessary enquiries could be made to ensure Mr Keating was okay. As it happened, he was not – he was lying in a ditch in a seriously injured condition with broken ribs, other broken bones, and serious lacerations, for a considerable period. That was avoidable by implementing something akin to the procedure put in place in response to the Improvement Notice.
114Having regard to those considerations, I am satisfied beyond reasonable doubt that the accused failed to implement a procedure using a monitored ‘sign out/sign in’ register that would have eliminated or reduced the identified risk.
4 Was the specified measure of providing a monitored ‘sign out/sign in’ register recording the name of the resident, the time they left the facility, expected time of return, the destination, the actual time of return, whether they were accompanied and their signature, a reasonably practicable means of addressing the risk?
115Practicable is a word not commonly used. It means something is able to be done or put into practice. This element requires me to determine whether the specified measure was ‘reasonably feasible’ or ‘reasonably capable’ of being done.
116In determining whether the proposed measure was reasonably practicable I must consider matters such as:
· how likely it was that residents could be injured or even die if they left the facility without being appropriately monitored, in that if the resident was injured or became ill whilst outside the facility, that resident might not then be detected as absent at the earliest possible time;
· what harm was likely to be caused if residents leaving temporarily were not appropriately monitored;
· what could be done to eliminate or reduce the risk;
· how suitable those options were, and how much they would have cost; and
· what the accused knew about the risk and the ways of eliminating or reducing it, or what it reasonably should have known.
117I must consider those matters by reference to the position of a reasonably prudent employer. It is no answer for the accused to say that it did not know about the risk, or thought that things were unlikely to go wrong, or could not afford to do what was suggested.
118I must also consider those matters without the benefit of hindsight. I must decide whether the proposed measure was reasonably practicable before the incident involving Mr Keating.
119If the risk was reasonably foreseeable by a reasonable employer, then the accused may have been required to take steps to prevent it even if it had no personal knowledge of the risk.
120However, employers do not need to guard against risks that are unforeseeable. That is because it is not reasonably practicable to protect against unforeseeable risks.
121Employers must proactively search for and address risks in the workplace. They must adopt an active, imaginative and flexible approach to workplace safety. They may need to protect against risks that arise where an employee, or in this case a non-employee, acts inadvertently or carelessly.
122However, the law does not require an employer to eliminate all dangers that could conceivably arise. That would involve imposing an unrealistic standard of perfection. The test is whether the accused failed to do what was reasonably practicable.
123It is also important to bear in mind that the accused has not been charged with causing the injuries to Mr Keating. Instead, SVCS has been charged with failing to address a risk. The evidence of the incident involving Mr Keating may help me decide whether the risk existed, how likely it was that that risk would materialise, what would happen if the risk materialised and whether the accused took all reasonably practicable steps to eliminate the risk.
124Again, I must conduct that analysis without the benefit of hindsight. I should remember that just because an accident has happened, it does not follow that it was due to a relevant failure on the part of the employer. Sometimes accidents happen and no one is to blame. In that respect I bear in mind Mr O’Neill’s submission that the real cause of Mr Keating’s injuries was the failure of a third party to fence off the road works.
125I also bear in mind that SVCS has never been convicted of an offence under the Occupational Health and Safety Act 2004 or, for that matter, of any other criminal offence. I also accept, as Mr O’Neill emphasised, that SVCS had been assiduous in developing Mr Keating’s comprehensive care plan. I further bear in mind the comments of Ms Luckhurst that staff at SVCS ‘were fantastic in their approach and follow-up’. All of that evidence makes it less likely that SVCS would commit an offence of this kind, albeit that previous good character cannot alter proven facts.
126I do not need to decide whether the provision of a ‘sign out/sign in’ register would have prevented the incident involving Mr Keating. Rather, there are two important questions that must be answered. First, would the provision of the ‘sign out/sign in’ register have eliminated or reduced the risk to residents leaving the facility without being appropriately monitored? (I have addressed that question in considering element three above). Second, was it reasonably practicable to provide a monitored ‘sign out/sign in’ register?
127If the answer is yes to both of these questions, then I should be satisfied of both the third and fourth elements of the offence, bearing in mind that I must be satisfied to the highest standard known to law – beyond reasonable doubt.
128Ultimately, determining what is reasonably practicable is a balancing exercise that requires me to use my common sense. It requires me to consider the danger posed by the risk and the difficulty of addressing the risk. I must then use that consideration to decide whether the measure posed by the prosecution was reasonably practicable.
129In his final address Mr O’Neill emphasised that those operating aged care facilities, such as the accused, are statutorily required under the Aged Care Act 1997 (Cth) ‘not to act in a way which is inconsistent with any rights and responsibilities of care recipients that are specified in the User Rights Principles’. Those rights are summarised at paragraph 77 of these reasons.
130As the evidence in this case has shown, different aged care residents will have differing healthcare needs and vulnerabilities. The defence say, in effect, that a one size fits all procedure as to a ‘sign out/sign in’ register will not accommodate the rights set out in the User Rights Principles for some residents, particularly those who are more independent and who might choose to go to the football, an art gallery or a restaurant. They should be free to do so as if they were living in a homelike environment.
131Mr O’Neill suggested that the concept of ‘care’ involved facilitating such independence and freedom of movement, not placing barriers in the way. Such a register would be an interference, it was said, with residents’ freedom of movement, their independence and their dignity. It is to be recalled that he gave the example of the resident who visits the café at the facility where he or she meets a friend and decides to go for a walk. Having to return to the facility to fill out a form would amount to a real interference with their freedom of movement.
132It followed that it was not reasonably practicable to implement the proposed measure to all residents or to all mobile residents. To do so would bring the accused in conflict with its statutory obligations.
133I do not find this argument persuasive. Mr Hevey characterised it as a ‘red herring’, and whilst I would not adopt that description I do think the argument overstates the intrusion and inconvenience that the implementation of the proposed measure might cause.
134There is no question that the rights set out in the User Rights Principles are important and underpin the manner in which aged care facilities must operate. However, these rights must be balanced against the imperatives associated with ensuring a high standard of care for each and every resident. To take a moment to write down a few cursory details to the effect that they are leaving and will be back at a certain time does not seem to me to constitute an ‘undue restriction’ on the ability of residents to move freely within and outside the facility, nor on their personal independence or on their dignity.
135Nor, in my view, does the proposed measure derogate from the capacity of a resident to accept personal responsibility for their actions and choices even though it might involve ‘an element of risk’. For many aged care residents, venturing outside the facility will necessarily involve an element of risk which they are free to weigh, but the proposed measure is about extending the capacity of the facility to monitor (and care for) that resident when they do choose to undertake such a risk. Put simply, if they get into difficulty, that should be noticed at the earliest possible time.
136I am not sure that it is helpful to posit analogies to illustrate the point – the teenager being required to tell their parents what time they will be home; the bushwalker being required to tell the park rangers when they expect to return from a walk in remote bush – suffice to say that in the operation of the accused’s undertaking, I am not at all of the view that the proposed measure represents an undue restriction on the rights of the residents.
137A further aspect of residents’ rights with which the proposed measure is said to interfere relates to privacy. Counsel submitted that independent adults should be able to go where they want without having to account to others. They may not wish to disclose where they wish to go in case it gives rise to some discrimination or embarrassment. Having to account for their movements could potentially discourage social mobility.
138Again, I think it is overstating the nature of the intrusion constituted by the proposed measure to characterise it as requiring residents to account for their movements. The sorts of details sought in the procedure implemented after the Improvement Notice are relatively benign and bland. For example, I would think that a sensitive ‘destination’ could be provided in a form that is unlikely to attract embarrassment or some other form of unwelcome attention.
139I do take Mr O’Neill’s point about the lack of expert evidence or evidence of industry practice. If the prosecution had adduced such evidence, that conceivably could have been of some assistance. However, I am not at all satisfied that it constitutes a fatal gap in the prosecution case. Much of what is contended here comes down to common sense and the practicalities of monitoring residents in case they get into difficulty. On the evidence adduced at trial there is more than sufficient evidence to identify the risk and the means by which it might be addressed.
140Mr O’Neill also pointed to the evidence from Ms Luckhurst that the accused already had a sign-out procedure in place before the incident involving her father. In her evidence she stated: ‘When we leave to take Bill out, we tell a staff member we are leaving, but we don’t sign Bill out if we are only going for a walk. If we are taking Bill out in the car, then we do sign him out and let the staff know.’ There was no other evidence, it was submitted, as to how that procedure operated. It is clear, however, that the subsequently implemented procedure differs from the previous procedure in that it requires residents or their families to comply.
141Mr O’Neill stated:
‘Requiring residents to fill in the sign in sign out book. What does that actually mean? What do we do if a resident chooses not to use the book? Does it mean that they’re physically prevented from leaving unless they do so? Does it mean that we insist by social pressure, or the authority of being the operator of the facility, that residents sign the book? Does it mean that we don’t take steps beforehand to enforce the use of the book, but then reprimand residents if they fail to do it?’[15]
[15] Transcript of Trial (16 April 2021), p 22.
142These questions and the lack of answers provided by the prosecution case, it was suggested, illustrate the problems with this measure as an effective means of managing the risk.
143I also do not find this argument persuasive. The procedure implemented in response to the Improvement Notice does not set out any penalties or consequences that might flow from non-compliance; nor should it. It is a procedure which, as I see it, relies on people trying to do the right thing. Provided staff and residents are educated as to its importance, I would expect it to be effective. It is always possible that there may be conscientious objectors or recalcitrants. However, I would expect that management at the accused’s facility would deal with such cases sensibly and practically. The problems that might arise from enforcement seem to me to be quite speculative. However real they might come to be, I do not see them as detracting in any substantive way from the overall effectiveness of the proposed measure.
144A further potential problem with the reasonable practicability of the proposed measure was the suggestion that two ‘sign out/sign in’ registers would be required because there are two exits about 20 meters apart. Unfortunately, this was not raised during the course of the hearing, but rather in the accused’s final address. Accordingly, there is no evidence before me that grapples with the issue. That said, it does not seem to me to be an insurmountable problem or one that is likely to render the proposed measure not reasonably practicable. It might, for example, be as simple as requesting that residents leave via the main entrance so that reception can be aware and/or the residents can use the ‘sign out/sign in’ register.
145Mr Hevey suggested that the proposed measure would cost little to implement. Although there is no specific evidence to that effect, Exhibit H appears to bear that out.
146The evidence of a pre-existing sign-out procedure does suggest that the accused was alive to the need to monitor the comings and goings of residents as part of its care of residents before 10 March 2018. In my view, a reasonably prudent employer in the position of the accused ought to have appreciated that there was also a risk to residents who intend to venture outside even for a short period, in not monitoring when they leave and when they are expected to return. The proposed measure significantly tightens the procedure to ensure that those venturing outside are able to be monitored. In light of what happened to Mr Keating, that is clearly desirable and appropriate.
147Because vulnerable residents come and go from the facility, whether for shorter or longer periods, there will always be the risk that something untoward may become of them. Monitoring when they leave and when they return seems to me to be a simple way of helping to ensure that when they do so, the risks to their health and safety are minimised.
148It follows that I am satisfied beyond reasonable doubt that the proposed measure is a reasonably practicable means of addressing the identified risk to the health and safety of the residents of the accused’s facility.
Verdict
149Taking all relevant matters into account, I am satisfied beyond reasonable doubt that each of the four elements of the offence have been proven.
150Accordingly, I find the accused guilty of the charge of failing to ensure persons other than employees were not exposed to risk contrary to s 23 of the Occupational Health & Safety Act 2004.
151I therefore direct that a verdict of guilty be entered in respect of that charge.
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