Lim v Toyota Motor Corporation Australia
[2014] VCC 963
•3 July 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-13-01714
| YOK EANG LIM | Plaintiff |
| v | |
| TOYOTA MOTOR CORPORATION AUSTRALIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 May 2014 | |
DATE OF JUDGMENT: | 3 July 2014 | |
CASE MAY BE CITED AS: | Lim v Toyota Motor Corporation Australia | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 963 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to dominant right shoulder in the course of employment over time – subsequent development of psychiatric condition – application in respect of paragraphs (a) and (c) of the serious injury definition – consequences flowing from each injury – disentanglement – leave granted in respect of both pecuniary loss and pain and suffering
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Hayhill Pty Ltd & Ors v Hodge [2006] VSCA 194; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire and Cable Pty Ltd v Abdulle [2009] VSCA 170.
Judgment: Leave granted to bring proceedings for pecuniary loss and pain and suffering damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Smith with Mr J Harris | Slater & Gordon Ltd |
| For the Defendant | Ms S Bailey | Minter Ellison Lawyers |
HIS HONOUR:
Introduction
1 The plaintiff Yok Eang Lim, is fifty-three years of age and was employed as a production line worker by the defendant from 1989 until she ceased employment in late 2009 and accepted a redundancy package offered to her in early 2010. She has not worked since that time.
2 She sustained an injury to her right shoulder in the course of her employment, probably between 2005 and 2009, such claim being accepted as compensable for the purposes of the Accident Compensation Act 1985 (“the Act”). She subsequently developed a psychiatric condition which is generally accepted to be a major depressive disorder. No separate claim for compensation was lodged but the plaintiff claims the psychiatric condition developed as a sequelae to the accepted physical injury to her right shoulder. She seeks leave of the Court pursuant to s134AB(16)(b) of the Act to claim damages in respect of both pecuniary loss and pain and suffering on the basis that the right shoulder injury satisfies the definition of serious injury in paragraph (a) of s134AB(37) of the Act and the major depressive disorder satisfies the definition of a severe permanent mental or behavioural disturbance or disorder as set out in paragraph (c) of that definition.
3 The defendant challenges the plaintiff’s entitlement to leave principally in respect of pecuniary loss damages in respect of the physical injury and claims that the psychiatric condition does not satisfy the relevant descriptor for serious injury set out in paragraph (c). Additionally, the defendant raised the question of disentanglement of consequences said to flow from the respective injuries as a relevant matter in this application.
4 It is common ground between the parties that the plaintiff had a very traumatic upbringing in her native Cambodia where she remained until the age of seventeen. She suffered what can only be described as horrific incidents, including the killing of two immediate family members and the ordeal of walking through a minefield when escaping from the country.
5 Notwithstanding these events early in her life, she has a good work record in Australia and commenced factory work shortly after her arrival in this country in 1981.
6 The plaintiff relied upon affidavits sworn by her on 22 November 2012 and 16 April 2014, together with numerous medical and vocational reports which were tendered in evidence before me. The plaintiff gave oral evidence and was cross-examined. Her treating surgeon, Mr Richard Dallanana was also required for cross-examination. The defendant relied upon medical and vocational evidence that was also tendered before me.
The evidence
7 In addition to the contents of the two affidavits which formed the substance of her evidence-in-chief, Mrs Lim confirmed that she was dominantly right-handed and stood at 148 centimetres, both matters being relevant to the mechanism of injury and the extent of consequences suffered by her. From her affidavit evidence, I noted the following matters as relevant to this application:
·She was born in Cambodia in 1963 and came to Australia in 1981. She is married with her husband employed in a fabric factory. They have three adult children.
·The plaintiff has limited English skills, being unable to read and write in English and is computer illiterate.
·She was employed by the defendant between 1989 up until undergoing surgery on her right shoulder in 2009.
·The plaintiff’s duties with the defendant involved what she described as repetitive awkward packing duties, packing door handles, locks and looms into boxes. This involved what is described as constantly and repetitively reaching to heights to retrieve items from shelves prior to packing them. She describes the work as being done at a fast pace.
·The plaintiff believes she suffered injury during 2007 over a period of approximately 10 to 12 weeks during which time she consulted a workplace nurse and subsequently a doctor as well as attending the Western Hospital in Footscray.
·She submitted a WorkCover claim before returning to work part time on light duties and then being transferred to other duties.
·By 2009 with increasing pain, she was granted a redundancy.
·At the time of the first affidavit, she was taking a number of medications in relation to the right shoulder pain and also using a cream on the shoulder and doing hydrotherapy twice per week.
·The plaintiff had suffered a left shoulder injury in a fall at work but maintained that the right shoulder was by far the worse and the injury which incapacitated her.
·The plaintiff had undergone surgery on her right shoulder but continued to have pain radiating into the shoulder blade and neck and a restricted range of movement.
·She deposed to difficulties in domestic activity and social activity, referring in particular to gardening, housework and cooking.
·Her personal relationship with her husband has been affected by the shoulder pain and restriction, leading to significant disharmony. Her children perform a great deal more of the housework than had been the case prior to the plaintiff’s injury.
·The plaintiff deposed to earning $62,000 per annum when she last worked with the defendant. She has not worked since receiving a redundancy from the defendant.
8 In her second affidavit sworn on 16 April 2014, the plaintiff confirmed the continuance of pain and restriction in her right shoulder and also referred to struggling with her psychological state. I further noted from that affidavit the following:
·She continues to see her general practitioner, Dr Luu, on a monthly basis and undergoes hydrotherapy once or twice per week. Her current medications are Panadeine Forte, three tablets per day; Nexium, once daily; and Valium, once per night. She takes occasional Panamax as a substitute for Panadeine Forte, particularly when driving, and uses creams on the shoulder at least twice daily.
·In late 2013, the plaintiff commenced experiencing bowel problems for which Dr Luu prescribed medications. She believes this was due to taking analgesic medication for the shoulder.
·She describes the current right shoulder pain as constant and radiating to the right side of the neck. It worsens with activities and is aggravated by driving and cold weather.
·Increased use of the left arm as resulted in the development of pain in the left shoulder from about the middle of 2013. Use of the right arm has limited her to rarely vacuuming or mopping floors and using the left hand more when cooking. Using the right arm above her head is also difficult.
·The pain interferes with her sleep, causing her to turn a lot during the night.
·Her psychological state has worsened such that she experiences significant depression and anxiety, problems with concentration and memory and a feeling of uselessness. She has lost her appetite and has lost approximately 10 kilograms of weight.
·Her personal relationship with her husband has deteriorated so that they now sleep in separate rooms. Her social life is limited by her depression such that she will occasionally go out with her husband but rarely goes out a lone. She does not believe she will be able to work in the future.
9 The plaintiff was cross-examined by Ms Bailey who appeared for the defendant. I noted the following matters in cross-examination:
·The plaintiff first started suffering right shoulder problems in 2005.[1]
[1]Transcript (“T”) 13, L22-24.
·Between 2007 and 2009, the plaintiff continued to work full time but not on light duties.[2]
[2]T14, L1-4.
·The plaintiff continued to work until just prior to her shoulder operation in November 2009.[3]
[3]T14, L13-17.
·Following the surgery, the shoulder did not get better. When she underwent surgery, she anticipated she would eventually return to work with Toyota.[4]
[4]T16, L15-21.
·The plaintiff was upset when she was not offered a redundancy package in 2009 but not upset when offered one in early 2010.[5]
[5]T16, L29 – T17, L19.
·The plaintiff did not believe she could look for a job after 2010 but Dr Luu had told her she could do restricted work.
·After the redundancy package, Dr Luu suggested a bookkeeping and English course but the plaintiff could not cope.[6]
[6]T20, L5-9.
·After being made redundant the plaintiff prepared a number of job applications with the assistance of a vocational provider.[7]
[7]T20, L19-31.
·After redundancy the plaintiff did not attempt any job believing she could not do it because of her difficulty with English.[8]
·After taking the redundancy, the plaintiff attended an English language course conducted four days per week for one term. She also attempted a computer training course but only on two occasions.[9]
·She ceased the latter course because of the effect of medication being taken for her shoulder.[10]
·The plaintiff agreed that she had had pain on her left side including the back, shoulder and hip following a fall in 2001.[11]
·At the present time, the right shoulder and the left shoulder was the problem.[12]
·The current treating doctor was Dr Luu. The plaintiff was not seeing a psychologist or a psychiatrist on an ongoing basis but had seen a psychologist on one occasion.[13]
·She was taking no medication for any sort of psychiatric injury.[14]
·There was one child living at home with the plaintiff and her husband. The husband would prepare meals on the weekends for two or three days and the plaintiff would otherwise eat packet noodles.[15]
·The plaintiff experienced pain in the arm when walking because of the need to elevate her arm.[16]
[8]T21, L25 – T22, L1.
[9]T24, L29 – T25, L26.
[10]T25, L28-31.
[11]T27, L23-29.
[12]T29, L1-2.
[13]T30, L3-10.
[14]T30, L11-14.
[15]T30, L21-29.
[16]T32, L13-15.
10 The plaintiff was re-examined. I found it as relevant the following matters:
·The plaintiff first volunteered for redundancy in 2009 but it was not offered.[17]
·The plaintiff did not have English skills and had not used a computer, the internet or a typing program before receiving the job seeking assistance.[18]
·The plaintiff has no ability to read or write in English.[19]
[17]T34, L1-6.
[18]T34, L13-18.
[19]T34, L30-31.
11 The only medical witness required to give oral evidence was Mr Richard Dallanana, orthopaedic surgeon, who had performed a subacromial decompression and resection on the plaintiff’s right shoulder in November 2009. Mr Dallanana had seen the plaintiff for review on two occasions post-surgery and had prepared a report for her solicitors dated 3 March 2011 which forms part of Exhibit A. Mr Dallanana confirmed that shoulders were his main sub-speciality and accounted for 95 per cent of his workload.[20]
[20]T39, L14-16.
12 In cross-examination, I noted the following matters:
·Mr Dallanana regarded the surgery as proceeding technically in an uncomplicated way.[21]
·Her ongoing complaints of pain following surgery did not warrant further radiology, as Mr Dallalana had personally identified the structures in the shoulders at surgery.[22]
·The areas of concern around the mechanical structure of her shoulder previously operated on did not seem to be of ongoing concern post-operatively.[23]
·Shoulder impingement, bursitis and some issues with the AC joint are treated highly successfully with a simple procedure in a vast majority of cases.[24]
·If there was a painful problem in the shoulder, making it difficult to use, the muscles adjacent to it tend to be overused and can go into spasm and hurt.[25]
·If the plaintiff presented currently as she had at Mr Dallalana’s last review (in 2010) he would have considered her to have a very limited work capacity.[26]
[21]T40, L22-29.
[22]T41, L17-28.
[23]T42, L3-8.
[24]T44, L13-17.
[25]T45, L18-22.
[26]T46, L12-22.
13 Mr Dallalana was re-examined and was asked to comment on an ultrasound scan reported as showing bursal impingement during shoulder abduction.[27] He described the ultrasound as descriptive of “thickened bursal tissue that is trapped or pinched on the bone above it … so it’s mechanical, a movement-based structural finding of what happens to the thickened bursa as the shoulder is elevated.”[28] Mr Dallalana stated that this could be a source of pain. Mr Dallalana further described in re-examination that the description of muscle spasm in relation to the shoulder could suggest that “the muscle is serving a painful joint and is asked to perform … because it is trying to move a joint which is sore or a muscle which is overused because it is compensating for another area that’s not moving so well.”[29]
[27]Exhibit A, page 41.
[28]T51, L16-24.
[29]T53, L14-22.
14 The remainder of the evidence in this application was received in documentary form tendered on behalf of the plaintiff (Exhibit A) and on behalf of the defendant (Exhibit 1). I will not recite here the totality of the documentary evidence relied upon but will refer to it in the course of my analysis below.
Analysis
15 There is no dispute between the parties that the plaintiff suffered a work-related right shoulder injury, probably occurring between 2007 and 2009. The report provided by Dr Farmer from the Toyota Medical Centre on 14 August 2009 sets out a cogent explanation of the development of the plaintiff’s right shoulder injury stating in particular:
“Her right shoulder pain initially started gradually soon after starting the weather strip job in 2007 which involved a lot red zone shoulder movements.”[30]
[30]Exhibit A, page 49.
16 The nature of Mrs Lim’s injury and the operative treatment performed by Mr Dallalana was described clearly in his report dated 3 March 2011. His further evidence given orally is supportive of the plaintiff’s claim that she suffers an ongoing organic lesion compromising the right shoulder, albeit that he had not seen her since April 2010.
17 The current treating general practitioner, Dr Luu, has managed the care of the plaintiff since September 2009. I accept that he has had regular contact with the plaintiff and this places him in an advantageous position to make an assessment of her injuries and to comment on her potential capacity for employment. The plaintiff relies upon three reports prepared between 23 May 2011 and 8 February 2014. In his most recent report he makes a diagnosis of
“chronic rotator cuff syndrome with subdeltoid and subacromial bursitis causing impingement.”[31]
[31]Exhibit A, page 68.
18 Dr Luu also expressed an opinion as to the plaintiff’s physical capacity for employment, noting:
“Mrs Lim has limited physical capacity, her current work restrictions include no lifting more than 3 kilograms, no work above shoulder height and away from the body, and on a part time basis … IPAR (return to work organisation) has been assisting Mrs Lim to identify suitable work. Job options have been very limited due to lack of qualification, poor English skills and reduced physical capacity.”[32]
[32]Exhibit A, page 70.
19 The plaintiff initially relied upon medico‑legal opinions from two orthopaedic surgeons in relation to the right shoulder injury. Mr Kevin King provided a report in March 2012. He regarded the right shoulder as being:
“a moderately severe disability to her and being severe enough eventually for her to accept a retrenchment package in 2010.”[33]
[33]Exhibit A, page 76.
20 Mr King went on to express a view that the ongoing shoulder injury coupled with her lack of special skills and her inability to speak English would prevent her from returning to the job she has done throughout most of her adult life.
21 More recently Mr John O’Brien expressed an opinion in January 2014. Mr O’Brien commented on the influence of psychosocial factors, noting some variability of the range of movement found on examination by other practitioners. Nevertheless he concluded:
“The current physical findings I would consider suggest some persistent rotator cuff tendinopathy.”[34]
[34]Exhibit A, page 95.
22 He regarded her clinical course as stable and expressed the following opinion as to her employment capacity:
“There is no possibility that this patient could return to her pre-injury occupation. In fact I would consider this patient now is clearly totally incapacitated and the clinical course would suggest this is permanent.”[35]
[35]Exhibit A, page 95.
23 The plaintiff also relies upon a report from Dr Amanda Sillcock, occupational physician. She examined the plaintiff on 29 January 2014 and provided a report dated 20 April 2014. I regarded her examination findings as significant particularly in light of the comments made by Mr O’Brien relating the influence “psychosocial factors”. Dr Sillcock found restriction of movement on examination of the right shoulder in relation to flexion and abduction. Both these movements were restricted by more than 50 per cent. Dr Sillcock also commented that internal rotation was significantly diminished. She noted: “Passive movement was no better.”[36]
[36]Exhibit A, page 96f.
24 Her opinion is that the plaintiff was suffering from bilateral rotator cuff lesions noting that the right shoulder had been surgically treated with a poor result. In relation to capacity, Dr Sillcock stated:
“Mrs Lim is unable to perform activities above chest height and she also has difficulty with dexterity such as opening jars. She cannot lift in excess of 5 kilograms and should avoid pushing and pulling. This incapacity will continue for the foreseeable future.”
She also commented:
“She does not have the capacity to perform her pre-injury duties and this incapacity is permanent.”
She went on:
“I do not believe that Mrs Lim has a capacity for suitable employment. She has almost no education and therefore has poor literacy. Her only work experience has been in factories and she is unable to do this type of work now.”[37]
[37]Exhibit A, pages 96g to 96h.
25 The plaintiff also relied upon a vocational assessment report prepared by Ms Kratrine Green in March 2012. At the time of the preparation of that report, Ms Green did not have access to the more recent medical opinions and therefore her report must be considered in that light. Ms Green considered a variety of alternative occupations ranging from factory process worker to kitchen hand. Each of the six alternative occupations considered involved a degree of physical demands involving use of the dominant right arm. In each case Ms Green did not consider such alternative employments as being suitable if the plaintiff’s condition remained the same.
26 The plaintiff relied also on an opinion of Dr Robert Athey psychiatrist, as set out in his report dated 19 December 2013. In light of my findings generally in this application, I do not consider it necessary to review Dr Athey’s report.
27 The defendant relied upon opinions from Dr Dominic Yong, specialist occupational physician, who provided five reports between 29 July 2011 and 21 March 2014 which are included in Exhibit 1 in this application. The initial report discloses that Dr Yong had earlier examined the plaintiff on 9 February 2010.[38] Dr Yong was provided with vocational assessment reports prepared by IPAR Rehabilitation on 8 December 2010 and 18 October 2012 in the preparation of his reports. I can see no reference to him being provided with a copy of the CoWork Pty Ltd vocational report dated 5 July 2013 which forms part of Exhibit 1. In any event, Dr Yong has provided a supplementary medical report to the defendant’s solicitors on 23 March 2014 where he states:
[38]Exhibit 1, pages 15.
“My diagnoses were made on clinical grounds and review of investigations … I stated Ms Lim has a capacity to work with restrictions. My restrictions included the following:
·reduction in working hours
·avoid right arm reaching tasks
·avoid right arm firm pushing or pulling tasks
·avoid right arm above shoulder height tasks
·avoid lifting more than 3 kilograms.
Thus I stated that she had a current work capacity.”[39]
[39]Exhibit 1, page 46.
28 The defendant also relied upon the opinion of Dr Jane Wadsley, occupational physician, who examined the plaintiff on 17 January 2014 and provided a report of the same date. She additionally provided a short supplementary report dated 24 March 2014 commenting on the opinion previously expressed by Mr O’Brien and Dr Entwisle. I note Dr Entwisle’s reports are not in evidence before me in this application. Dr Wadsley does not detail all the documentation provided to her at the time of her examination but does make reference to a number of radiological studies in the course of her report. She additionally refers to a vocational assessment report from IPAR. Dr Wadsley regarded the plaintiff as having some work capacity described as follows:
“The worker from a purely physical point of view is not fit for her pre-injury employment, but is fit for suitable employment.”[40]
[40]Exhibit 1, page 55.
29 Dr Wadsley is careful to exclude the psychological condition which she believes is impacting largely on the plaintiff’s ability to perform suitable employment. She goes on to describe the plaintiff’s capacity in the following terms:
“I believe that her current physical restrictions are no lifting more than 1 kilogram over waist height or 3 kilograms overall. I believe that she should not work in any job involving work over shoulder height and no work involving lifting, stretching with her arms away from her body. She could work reduced hours of 4 hours x 5 days per week initially, from a physical perspective.”[41]
[41]Exhibit 1, page 56.
30 The final report relied upon which the defendant relies is a document entitled “Vocational Opinion and Labour Market Analysis Report” prepared by Ms Joanna Bryant which includes the following instruction received by her:
“Provide a short report which discusses at least four jobs that are within the worker’s restrictions and comply with the definition of suitable employment.”[42]
[42]Exhibit 1, page 82.
31 The suggested occupations were: crossing supervisor; product assembler; sandwich hand; meter reader; packer (light); and cashier (Cambodian store) in addition to the occupations of library assistant and security monitor.[43] Ms Bryant did not consider the plaintiff’s English and computer skills good enough for her to succeed in training and working as a control room monitor and discounted the possibility of obtaining work in a Cambodian store as a cashier as “remote” and therefore did not discuss these potential jobs. She did, however, propose a further occupation of nail technician as suitable employment. The opinion from Ms Bryant in relation to these proposed alternative occupations consider employment of between 15 and 20 hours per week, yielding potential earnings of between $327.40 and $451.60.
[43]Exhibit 1, page 82.
32 In the last year in which the plaintiff was employed by the defendant, her gross earnings were $62,033 ($1,192.94 per week). In the three years preceding the date of injury, the plaintiff’s annual earnings were: $55,265 (2006/2007); $54,006 (2007/2008); and $51,779 (2008/2009).
33 The provisions of s134AB(38)(e) and (f) are prescriptive in the method adopted to calculate whether or not a plaintiff has satisfied the test to establish a loss of earning capacity of 40 per cent or more for the purposes of being granted leave in respect of the loss of earning capacity. The mandatory adoption of the statutory approach described in paragraph (38)(f) was approved by the Court of Appeal in Hayhill Pty Ltd & Ors v Hodge[44].
[44][2006] VSCA 194 at [8] – [13].
34 If it is accepted that the plaintiff had a potential post injury earning capacity of $23,483 (based on the suggested earnings for 20 hours as a meter reader),[45] then such potential earnings show the plaintiff as clearly establishing a loss of earning capacity of 40 per cent or more, even if the lowest annualised pre-injury earnings of $51,779 is used as the comparator.
[45]Exhibit 1, page 86.
35 In the present case I discount the views of Mr O’Brien to the effect that the plaintiff has no current work capacity as it appears that he has taken into account non-organic factors in expressing an opinion as to the plaintiff’s work capacity. I was greatly assisted by the evidence given by Mr Dallalana as to the organic nature of the ongoing injury accepting that Mr Dallalana has not seen the plaintiff since 2010. Nevertheless I regarded his explanation of the organic structures operating within the shoulder and neck region as being most useful to me.
36 I also accept the opinion expressed by the treating general practitioner, Dr Luu, who has had the advantage of managing the plaintiff’s overall condition since September 2009. Dr Luu specifically refers to a limited physical capacity and notes the very limited range of job options for which the plaintiff is suited due to her lack of qualifications, poor English skills and reduced physical capacity. I accept Dr Luu’s opinion that Ms Lim has a limited physical capacity as described by him and suitable work would require restrictions and be performed on a part time basis.[46] This opinion accords with the opinion provided to the defendant’s solicitors by Dr Wadsley in her report dated 17 January 2014. I also accept the opinion of Dr Yong where he states in March 2014:
“Thus the treating doctor’s capacity for work is similar to my recommendation. Mr Luu recommended a series of right shoulder work restrictions and performing reduced hours.”[47]
[46]Exhibit A, page 70.
[47]Exhibit 1 page 47.
Conclusion
37 There is clear authority from the leading decision in Barwon Spinners Pty Ltd & Ors v Podolak[48] that it is the capacity for work rather than the potential availability of work that is relevant in these applications. It seems clear from the analysis made by Dr Luu, Dr Yong and Dr Wadsley in particular that such an approach has been followed.
[48](2005) 14 VR 622.
38 I find that by reason of the injury to the plaintiff’s dominant right shoulder, she suffers on a permanent basis a reduction of her earning capacity of not less than 40 per cent when assessed in accordance with the provisions of s134AB(38)(f). I do not need to consider the application made in respect of paragraph (c) of the definition. Additionally, having found that the plaintiff has made out her case for a grant of leave in respect of a loss of earning capacity, there is no need to separately consider an application in respect of pain and suffering. The authority for this proposition is clearly set out by the Court of Appeal in Advanced Wire & Cable Pty Ltd & Anor v Abdulle.[49]
[49][2009] VSCA 170 at [62] and [63].
39 I should say finally that I found the plaintiff to be a truthful witness. I note that the only real attack made upon her credit in cross-examination concerned the circumstances surrounding the redundancy package obtained by her in 2010 and a possible earlier redundancy in 2009.
40 On the statutory analysis required in accordance with s134AB, I am satisfied that she has made out her application for leave in respect of the pecuniary loss consequences which entitles her to additionally claim damages in respect of pain and suffering.
41 I propose to grant leave to the plaintiff pursuant to the provisions of s134AB(16)(b) to claim damages for pecuniary loss and pain and suffering in respect of the right shoulder injury sustained during the course of her employment with the defendant. I will hear the parties in relation to formal orders and the question of costs.
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