R & P Boland Nominees Pty Ltd v Hobbs
[2013] VSCA 66
•27 March 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0214
| R & P BOLAND NOMINEES PTY LTD | Appellant |
| v | |
| GAYLENE JOY HOBBS | Respondent |
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| JUDGES | NEAVE, REDLICH JJA and KYROU AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 18 February 2013 |
| DATE OF JUDGMENT | 27 March 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 66 |
| JUDGMENT APPEALED FROM | Hobbs v R&P Boland Nominees Pty Ltd [2011] VCC 1436 (Judge Parrish) |
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ACCIDENT COMPENSATION — Serious injury — Application under s 134AB(16)(b) of the Accident Compensation Act 1985 for leave to commence common law proceedings — Leave granted on basis of pain and suffering consequences — Whether reasons of trial judge adequate — Appeal dismissed
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| Appearances: | Counsel | Solicitors |
| For the Appellant | Mr MF Wheelahan S.C. with | Wisewould Mahony |
| Ms M Norton | ||
| For the Respondent | Mr A Keogh S.C. with | Ryan Carlisle Thomas |
| Mr A Macnab |
NEAVE JA:
I have had the advantage of reading the draft reasons for judgment of Kyrou AJA and I agree with his Honour, for the reasons he gives, that the appeal should be dismissed.
REDLICH JA:
I have had the advantage in reading in draft the comprehensive reasons of Kyrou AJA and agree that the appeal should be dismissed.
The trial judge, who has very considerable expertise in this jurisdiction, gave extensive reasons in which he expressed only qualified acceptance of the respondent’s reliability. His Honour also expressed concerns about the extent of her injury. He found that the consequences of the injury were not as severe as the respondent portrayed. However, his Honour was satisfied that the respondent had suffered a compensable physical impairment and consequential pain and suffering which warranted the grant of leave.
No deficiency in the reasons arises because of his Honour’s disclosure of his reservations concerning the respondent’s account and presentation of her injuries. On the contrary, it is to be expected that, where a trial judge concludes that a plaintiff’s description of her injuries and their consequences is overstated, the judge, in conformity with their duty, will disclose such qualifications in their reasons. What is then necessary, if the reasons are to be adequate, is that they reveal explicitly or implicitly, the basis upon which the judge remained persuaded, despite these qualifications, that the extent and the severity of the injury were of such an order as to warrant the grant of leave. As Kyrou AJA has shown, the judge’s reasons, which include a very careful consideration of all of the evidence, meet that requirement.
KYROU AJA:
Introduction and summary
This is an appeal by R&P Boland Nominees Pty Ltd (‘appellant’) against an order made by a judge of the County Court on 14 December 2011 in favour of the appellant’s former employee, Gaylene Joy Hobbs (‘respondent’).[1] By that order, the judge granted leave to the respondent, pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (‘Act’), to commence a common law proceeding against the appellant seeking damages for pain and suffering arising out of her previous employment as a shop assistant at the appellant’s ‘Two Dollar Plus’ shop in Lara (‘shop’).
[1]Hobbs v R & P Boland Nominees Pty Ltd [2011] VCC 1436 (‘Reasons’).
In the County Court proceeding, the respondent alleged that, on 19 March 2003, she sustained an injury to her lumbar spine involving referred right buttock pain (‘injury’); that the injury occurred while she was carrying a sealed box from the shop into the warehouse at the rear of the shop; and that the injury was a ‘serious injury’ within the meaning of para (a) of the definition of that expression in s 134AB(37) of the Act.
Paragraph (a) of the definition of ‘serious injury’ in s 134AB(37) of the Act provides that ‘serious injury’ means ‘permanent serious impairment or loss of a body function’.
Section 134AE of the Act provided that:
The reasons given by the court in deciding an application under section 134AB(16)(b) shall not be summary reasons but shall be detailed reasons which are as extensive and complete as the court would give on the trial of an action.[2]
[2]Section 134AE was repealed on 1 January 2013: Justice Legislation Amendment (Miscellaneous) Act 2012 ss 2(2) and 3.
In order to obtain leave to commence common law proceedings, the respondent had to satisfy the trial judge, on the balance of probabilities, that:
(a) the injury arose out of, or in the course of or due to the nature of the respondent’s employment with the appellant on or after 20 October 1999;[3]
[3]Act s 134AB(1).
(b) the impairment arising from the injury was permanent in the sense that it was ‘likely to last for the foreseeable future’;[4] and
(c) the consequences to the respondent of her impairment in relation to pain and suffering or loss of earning capacity were serious, that is, ‘when judged by comparison with other cases in the range of possible impairments … [the consequences are] fairly described as being more than significant or marked, and as being at least very considerable’.[5]
[4]See Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622, 639 [33].
[5]Act s 134AB(38)(b) and (c).
The trial judge decided that the respondent’s injury satisfied paras (a) and (b) above. His Honour held that the pain and suffering consequences of the injury satisfied para (c) above, but that the pecuniary loss consequences of the injury did not do so. Neither party seeks to challenge these findings. However, the appellant seeks to impugn the order below on the basis that the trial judge’s reasons for decision were inadequate and did not comply with s 134AE of the Act.
For the reasons that follow, I have concluded that the trial judge’s reasons for decision were adequate and complied with s 134AE, and that the appeal should be dismissed.
Brief overview of the facts
The respondent was born on 9 September 1953. In September or October 2002, she commenced full-time work as a shop assistant in the shop. She described the circumstances in which she sustained the injury on 19 March 2003 as follows:
I attempted to step down [into the warehouse] and as I did so in an awkward way sort of partly turned sideways with the box in front of me that I was carrying, I stepped down awkwardly twisting my lower back. I was met with a stabbing pain in my lower back.[6]
[6]Reasons [12].
The respondent reported the incident, took some painkillers and did not do any lifting work for the remainder of her shift. She initially returned to work on light duties, and was later cleared to perform her normal duties, avoiding lifting or carrying tasks as much as possible. The appellant terminated the respondent’s employment on 8 April 2003 and she has not worked since.
County Court trial
The opening and closing addresses of the appellant’s senior counsel made it clear that the key issues at trial were:
(a) whether there was an organic basis to substantiate the respondent’s alleged low-back injury. Counsel stated that ‘[t]he defences are there is no organic basis’; and
(b) the respondent’s credibility. Counsel disavowed any suggestion that the respondent was deliberately lying, but argued forcefully that she was not an accurate historian, that she was exaggerating her symptoms and that her evidence was very unreliable.
The respondent was the only witness who gave oral evidence. The remaining evidence comprised affidavits filed in the proceeding, exhibits tendered from the court books and medical records. One of the affidavits was that of the respondent’s long-term friend, Ms Maja Neagle.
Set out at [17] to [44] below is a summary of the evidence adduced at the trial insofar as it is relevant to the appeal. The summary is based on the trial judge’s reasons.
(a) The Respondent’s evidence
The respondent’s evidence comprised three affidavits, brief oral evidence‑in‑chief and extensive cross-examination. The key aspects of the evidence that she gave by way of affidavit and in chief were as follows.
(a) The respondent initially saw Dr Steven Jensen, orthopaedic physician, on 24 February 2004. He prescribed OxyContin and Endone to relieve her pain. She continues to take Endone when the pain is very bad.
(b) The respondent has ‘constant’ pain in her lower back and ‘intermittent’ pain in her right buttock and leg. She estimated that she suffered right back and leg pain every day but not all day every day. The leg pain is associated with numbness in the front of her leg. At times, the pain radiates up her back and from time to time she suffers muscular spasms in her back.
(c) The respondent cannot sit or stand for very long. Sometimes, she can only do so for five to 10 minutes. If she stands in one position for lengthy periods, it feels like something is stabbing into her low-back.
(d) The respondent’s symptoms are made worse by bending, lifting, twisting, stooping or sudden movements.
(e) The respondent’s capacity to walk is limited. Walking on uneven ground or up or down stairs can aggravate her low-back condition.
(f) Getting in and out of cars and getting out of bed in the morning can cause a bad flare-up of pain in the respondent’s lower back.
(g) The respondent finds it difficult to get off to sleep and remain asleep. Topomax and Lyrica improved the position ‘a bit’ but she no longer takes this medication because it makes her feel drowsy during the day. She cannot remember having a full night’s sleep since the injury.
(h) Since the injury, the respondent cannot cut the hair of friends and members of her family because she can no longer stand and stoop comfortably.
(i) The respondent is limited in what she can do in the garden and around her house.
(j) The respondent wears Norspan patches as required to ease the pain.
(k) Prior to the injury, the respondent was fit and active and enjoyed gardening, swimming, dancing, socialising, hairdressing and had a ‘very enjoyable and active social life’. As a result of the injury, her activities have been very restricted and she has withdrawn socially.
(l) The respondent has considerable difficulty driving and can only do so for short distances.
(m) Between January and April 2009, the respondent underwent a pain management program.
(n) The respondent received nerve root sleeve injections in October 2010. Her leg pain improved for two or three months. The injections did not relieve the constant pain and discomfort in her low-back.
(o) The respondent received sacroiliac injections in August 2011 which improved her leg symptoms and temporarily moderated her back pain.
(p) Between the end of 2005 and the middle of 2006, Dr Verrills gave to the respondent some injections which temporarily relieved the pain, after which she returned to the same level of pain in her low-back and leg.
In cross-examination, the respondent made the following concessions and observations.
(a) The respondent walks some of her grandchildren to and from a child‑minding facility. She sometimes looks after them at her daughter’s house for four hours. She has put the grandchildren into prams and changed nappies. She has lifted them with ‘great difficulty’.
(b) Gardening remains part of the respondent’s life.
(c) The respondent can handle train travel reasonably well.
(d) The respondent walks to a shopping centre about half a kilometre from her home, which takes about half an hour. She sometimes uses a shopping bag or a shopping trolley.
(e) The respondent performs some housework. In particular, she washes and hangs out the clothes, cleans the bathroom and changes and makes the bed. She vacuums and cleans the floors in stages.
(f) The respondent tends to sleep on a recliner chair because she finds it more comfortable. She lies on her left side because the right side causes pain.
(g) When the respondent uses her hands to wash her hair, she experiences pain in the same spot in her low-back.
(h) The respondent experiences stabbing pain in her right buttock and constant pain in her low-back. Over the last three or four years the pain has been the same and constant.
(i) After the injury, the respondent looked for part-time hairdressing work as a matter of ‘lifestyle choice’. However, she did not believe that she could have performed the work. About six or seven months after the injury, she had a trial of performing some hairdressing work but only lasted four hours. She was in agony and had to take painkillers. When she got home, she could not get out of the car. She continues to cut the hair of her mother and her husband.
(j) The respondent had difficulties lifting a two litre container of milk, as it caused a sharp pain in her low-back.
(k) The respondent considers that she walks with a limp on the right side. She feels as though she drags her right leg, which causes her to limp.
During cross-examination, surveillance footage taken on five separate occasions between 15 August 2008 and 23 June 2011 was shown to the respondent. The footage showed her walking at a fast pace, pushing a pram, pulling a wheelie bin, bending down, getting into and out of a car, driving and carrying a bag. The footage that was taken on 23 June 2011 showed her apparently limping when entering the premises of one of the appellant’s medical experts (Mr Ian Jones) and apparently walking without a limp later on the same day.
The respondent sought to explain the surveillance footage as follows. Occasionally, she felt as though she was limping, although the footage may not clearly depict it. On several occasions, she had taken painkillers which permitted her to walk in a way that appeared normal. She considered that there was no difference in her gait at the time she entered Mr Jones’ premises and later on the same day. Pushing the pram allowed her to rest on it to some degree and this enabled her to walk with greater ease.
In re-examination, the respondent gave the following evidence.
(a) Hairdressing work involves the respondent having her arms up above the basin, which causes pain in her low-back. She would also have trouble operating the hairdryer and moving around a customer.
(b) The respondent commenced to wear the Norspan patches in 2008 and continues to wear them. She takes two and sometimes three or four Endone tablets per day.
(c) Activity increases the respondent’s pain level.
(d) It takes the respondent about two and a half hours to fall asleep. The pain wakes her up. She then uses a heat pack in the recliner chair to help relieve the pain. She may get five or six hours of broken sleep.
(e) When the respondent was queried as to why she was standing up and sitting on one side in the seat when giving evidence, she said that she was unable to sit normally as it caused an increase in her low-back pain.
(b) Evidence of Ms Neagle
In her affidavit, Ms Neagle stated the following. Prior to sustaining the injury, the respondent was a very fit and active woman and a very keen gardener. Since the injury, the respondent was not ‘the same person’. She has assisted the respondent with vacuuming, cleaning and general housework and also helped out in the garden. She saw the respondent on a weekly basis, and sometimes several times a week, and observed the respondent having difficulty sitting, walking or standing for lengthy periods. When she visited the respondent, the respondent generally sat on a recliner chair. She has observed the respondent to be in tears due to pain. At times, the respondent is ‘cranky and short tempered’ with her family. She and the respondent used to play cards regularly but, due to the respondent’s inability to sit for lengthy periods, they no longer do so. Nor do they enjoy a social life outside the house.
(c) Radiology
The respondent underwent a CT scan on 10 April 2003 and an MRI scan on 19 December 2003, neither of which indicated any abnormality in her lumbar spine. A provocative discogram undertaken on 17 June 2005 disclosed a small left posterolateral fissure at the L4-5 disc. A further MRI scan undertaken on 19 January 2007 indicated: ‘Stable appearances of the lumbar spine since [20 December 2003]. Very mild disc degeneration at L4-5 and bilateral L5-S1 facet joint arthropathy.’
(d) Reports by treating doctors
On 24 February 2004, the respondent saw an expert in musculoskeletal pain medicine, Dr Steven Jensen. He considered the only abnormality was some mild degradation involving the L4-5 and L5-S1 intervertebral disc of questionable clinical significance. He found no evidence of neurological encroachment. He concluded that the respondent was genuine in her presentation without evidence of abnormal illness behaviour, and diagnosed her to be suffering lumbosacral pain of undetermined origin.
Over several years, Dr Jensen performed various diagnostic testing, including diagnostic injections to the respondent’s lower lumbar facet joints, her sacroiliac joints and also her lower three lumbar intervertebral discs. These tests did not identify a primary pain generator. Dr Jensen last saw the respondent on 11 April 2006. He concluded that she had suffered from genuine somatic lumbosacral pain, meaning that the pain originated from ‘one or more of the physical structures related to the spinal column’ and was not psychological in origin. Dr Jensen concluded that the respondent’s depression was secondary to the physical symptoms and that she did not have a capacity for suitable employment.
In May 2005, the respondent saw a pain management specialist, Dr Paul Verrills. He noted that various tests had ‘ruled out’ the three major specific diagnoses of sacroiliac joint, facet joint and discogenic pain. However, he considered that she suffered ‘significant lumbar somatic pain’ of uncertain aetiology, and that she was effectively incapable of any employment.
On 22 June 2005, an orthopaedic surgeon, Mr David de la Harpe saw the respondent. He found that she had a normal gait, a reasonable range of movement of her lumbar spine and no neurological abnormality in the lower limbs. He was of the opinion that her back pain was ‘mechanical in nature’ and that surgery would not assist.
Another orthopaedic surgeon, Mr Roy Carey, examined the respondent on 20 February 2008 and 2 June 2008. He was unable to provide a diagnosis but was concerned that the respondent was taking opiate analgesics, OxyContin and Endone, with no diagnosis other than chronic non-specific back pain.
In March 2008, the respondent began to see a new general practitioner, Dr Susan Trainor. She diagnosed the respondent as suffering chronic lumbosacral pain. Dr Trainor commenced the respondent on Norspan patches and reduced her use of OxyContin and Endone. Dr Trainor was of the opinion that the respondent’s physical low-back injury impairment made it unlikely that she would be able to undertake suitable employment. In September 2011, Dr Trainor reported that the respondent was only able to sit at a desk for a maximum of 15 minutes a day, unable to walk for more than half an hour at a time and was able to do 15 minutes of vacuuming twice a day, mop once a week and cook. Dr Trainor stated that the respondent continues to suffer from chronic low-back pain which radiates into her right leg to her toes and that she was on one to two Endone tablets per day and 20 milligram Norspan patches weekly.
In September 2008, the respondent saw a pain management specialist, Dr Andrew Muir. Between September 2008 and June 2010, the respondent complained of back pain, pain affecting the left buttock and the back of the right and left knee. Since June 2010, the respondent underwent epidural nerve root sleeve injections which greatly improved her leg pain but left her with significant pain at the base of the spine. In his report dated 3 June 2011, Dr Muir stated that ‘on balance’ the respondent was suffering from mechanical low-back pain, which may be discogenic, with some evidence of some radicular features. He considered that the respondent had no work capacity and that this would remain the position indefinitely.
(e) Reports by medico-legal experts engaged by the respondent
Mr Roger Westh, an orthopaedic surgeon, saw the respondent on 7 March 2006, 12 May 2009 and 3 May 2011. On 7 March 2006, Mr Westh noted that, although the respondent had a restricted range of movement, she was able to flex to 50 degrees and to sit on the examination couch with her legs extended. On 3 May 2011, he was of the opinion that it was likely that the respondent sustained a lumbar disc injury and that her presentation was one of ‘chronic mechanical low back pain’, with a significant accompanying psychological stress reaction. According to Mr Westh, the respondent was unable to perform suitable employment.
Dr Robyn Horsley, an occupational physician, saw the respondent on 17 August 2006, 15 June 2009 and 28 November 2011. Dr Horsley diagnosed the respondent as suffering ongoing mechanical back pain together with a psychological reaction. Dr Horsley was of the opinion that the work incident exacerbated underlying pre-existing degenerative changes in the lumbar spine and also considered that the L4-5 annular fissure noted on the discogram undertaken on 17 June 2005 was probably the primary pain generator. In his reasons, the trial judge stated the following about Dr Horsley’s examination of the respondent on 28 April 2011 and Dr Horsley’s report of the same day:
53.When last seen by Dr Horsley on 28 April 2011, she was of the same opinion in relation to diagnosis. She considered that the plaintiff was subject to work restrictions and that her functional tolerances were reduced. In particular, she states:
I believe that Ms Hobbs in theory, has physical capacity for part time work of up to 15 to 20 hours. However, the reality is, that she has now been out of the workforce for 8 years and is now 58 years of age. She was granted a Disability Support Pension in 2007. Despite her physical program, she remains deconditioned with poor functional tolerances. She has had an extensive physical program through various musculoskeletal physicians and pain specialists and a comprehensive counselling program through Chris Mackay and Associates.
I believe that she has reached maximal medical improvement and that her employability in reality, in an open and competitive market place is poor. With her level of deconditioning, her disability focus and her limited physical tolerances, her attendance at work is likely to be unreliable, if suitable duties were to be found.[7]
[7]Reasons [53].
The respondent saw Dr Epstein, a psychiatrist, on 8 May 2009 and 25 May 2010. Dr Epstein was of the opinion that the respondent suffered some mild symptoms of depression as a result of chronic pain, discomfort and disability and a sense of grief at the loss of employment prospects and economic security. He considered that the low-back symptoms were predominantly a consequence of the organic injury and not due to a mental or behavioural condition, and that her psychiatric state did not restrict her work capacity in any way.
Another psychiatrist, Dr Honey, diagnosed the respondent as suffering a chronic adjustment disorder with anxious and depressed mood which was due to the effects of her physical injury. Dr Honey was of the opinion that the respondent’s psychiatric condition did not cause her an incapacity for work and that she was capable of performing suitable employment.
(f) Reports by medico-legal experts engaged by the appellant
The respondent saw a sport and musculoskeletal physician, Dr Timothy Wood, on 13 July 2004 and 6 October 2004. His diagnosis was that of ‘non-specific somatic low-back pain.’ He considered her to be fit for part-time work of a light nature that did not include repetitive bending or lifting.
The respondent saw a general surgeon, Mr Peter Scott, on 23 August 2006 and 6 September 2007. Following the initial examination, Mr Scott stated that the respondent had some symptoms suggestive of a discogenic problem producing intermittent right-sided lumbosacral nerve root irritation, that the respondent’s response was grossly abnormal and that she had developed a Chronic Pain Syndrome associated with anxiety, depression, frustration and suicidal tendency requiring ongoing psychotherapy. Mr Scott commented that the respondent was genuine and well motivated but severely disabled as a result of her ongoing ‘psychosomatic symptoms’.
Following the examination on 6 September 2007, Mr Scott found that movements of the lumbosacral spine were ‘grossly restricted in all directions’. Although the Chronic Pain Syndrome was associated with work-aggravated early discogenic disease in the lumbosacral spine, the major impairment appeared to be related to anxiety and depression. Mr Scott considered that the respondent’s organic disability rendered her fit only for light work and that this disability combined with her psychological symptoms rendered her totally unfit for all forms of work.
The respondent saw an orthopaedic surgeon, Mr Clive Jones, on 24 April 2003. He concluded that some of the restrictions in the respondent’s back movements were deliberate rather than real and that her straight leg raising was resisted, but she was able to sit up with her hips flexed and knees extended and clasp her ankles without any problem. He considered that the respondent had suffered a soft-tissue strain of the back and that there was no indication of a lumbar disc injury.
An occupational physician, Dr Gary Davison, saw the respondent on 16 June 2003, 21 October 2003, 15 March 2010 and 20 September 2010. When he first saw the respondent, Dr Davison noted that her straight leg raising was possible to about 30 degrees bilaterally but she was able to sit on the examination couch with her legs fully extended and reach down her lower legs. He diagnosed a soft-tissue injury strain to the respondent’s lower back with the possibility that it may be discogenic or originating in a facet joint.
When Dr Davison examined the respondent on 15 March 2010, he noted that she was a ‘disability focused individual’ who entered the examination room with a slow and shuffling gait and who displayed moderate pain behaviours. Waddell’s sign was positive for light touch on the lower back region, as well as for apparent spinal movement. He was of the opinion that the respondent had developed a Chronic Pain Syndrome, that there was no objective medical evidence to determine the cause of the pain and that there was a functional component to her presentation.
At the time of Dr Davison’s final examination of the respondent on 20 September 2010, he noted that, although she presented with a seven year history of pain and stiffness in the low-back with some radiation of pain towards the right buttock and posterior thigh, he could not determine on clinical examination the cause of such pain. He also noted that various sensory disturbances co-relating to the right L5 dermatome may suggest an element of radiculopathy, but those symptoms had fluctuated in severity over time.
In his report dated 6 October 2010, Dr Davison expressed the opinion that the respondent had a capacity for suitable duties of a part-time sedentary nature subject to the following physical restrictions:
(a) avoid frequent and/or repetitive bending or twisting;
(b) vary posture regularly and at will;
(c) avoid manual handling greater than 4.5 kilograms at bench height; and
(d) four hours work per day, five days per week.
A psychiatrist, Dr Carol Newlands, examined the respondent on 3 March 2004, 13 January 2005, 20 September 2006, 5 November 2007 and 4 March 2010 and diagnosed a mild chronic adjustment disorder with depressive features secondary to the physical injury. In terms of the respondent’s work capacity, Dr Newlands considered that any limiting factor would be as a result of her physical condition rather than her mental condition.
The respondent saw an orthopaedic surgeon, Mr Ian Jones, on 23 June 2011. He considered that the respondent suffered from a mild form of degenerative lumbar disc and joint disease and that the radiological investigations provided some basis for her symptoms and signs. Mr Jones also considered that there was a functional component to the respondent’s symptoms, with evidence of a Chronic Pain Syndrome. In his opinion, the respondent was only fit for part-time work as a product examiner.
Trial judge’s findings and reasons
In his reasons, the trial judge set out in considerable detail the evidence that I have summarised above.
After analysing the evidence, the trial judge held that the respondent had suffered a low-back injury arising out of the course of her employment with the appellant on 19 March 2003. His Honour accepted the opinion of Dr Jensen that the respondent suffered from genuine somatic lumbosacral pain coming from one or more of the physical structures related to the spinal column, and the similar opinion of Dr Verrills. His Honour also concluded that the references to ‘mechanical’ low‑back pain in the opinions of Mr de la Harpe, Dr Muir, Dr Horsley and Dr Wood ‘would seemingly equate to a similar diagnosis as Dr Jensen.’ On the basis of these medical opinions, his Honour concluded that ‘there is an organic basis for the production of pain in [the respondent’s] low-back as complained of by [her].’[8]
[8]Reasons [95].
After stating the above conclusion, the trial judge said that, before setting out his reasons for the conclusion, he would comment on the respondent’ evidence. His Honour then made the following finding about the respondent’s credit:
98In my view, the plaintiff gave her evidence with a very flat affect and indeed was extremely injury and pain focussed. For reasons which I shall later expand on, I came to the view that the organic low-back injury was not of itself as severe as the plaintiff portrayed. Furthermore, I tended to the view that the plaintiff, probably unconsciously, wished to impress on the Court what she considered to be the severity of her condition. Again, for reasons which I will expand on shortly, I do not accept the plaintiff to be a totally reliable witness.[9]
[9]Reasons [98].
The trial judge then stated the following:
99Notwithstanding, I have come to the view that there is a compensable organic low-back injury for the following reasons;
(a)The plaintiff has been reasonably consistent as to the area of her symptoms in her lower back and the right buttock, with no evidence that she had any difficulties with her low-back of any significance prior to the subject injury;
(b)There is no suggestion from any doctor that the plaintiff is ‘making it up’ and setting out to wilfully deceive any examiner. Although appreciating doctors largely react on the assumption that the histories given to them are correct, I have gained the impression that the treating doctors in particular, accepted that she was suffering low-back pain for which, unfortunately, no clear source could be identified;
(c)It is to be noted that the plaintiff has undergone a reasonably invasive procedure involving the discogram in an effort to diagnose the source of her pain. Furthermore, in more recent times she has undergone sheath injections which she accepts has caused some improvement in her right buttock and leg pain;
(d)The lay evidence from Mrs Maja Neagle … paints a picture which is consistent (although not conclusive of course) of someone who is experiencing ongoing low-back pain.
100Although I accept that the plaintiff has suffered a compensable low‑back injury, I do have concerns as to the extent of such injury. Several doctors made reference to inconsistencies on examination involving straight leg raising and back movements generally. Furthermore, testing for non-organic symptoms (Waddell’s sign) suggested that there are non-organic factors playing a role in her presentation. I refer to the recent orthopaedic examinations which would all suggest a psychological stress reaction to her underlying condition (for example, see the orthopaedic surgeon, Mr Westh, who last examined the plaintiff on 3 May 2011; Dr Davison on 20 September 2010; and Mr Jones on 23 June 2011).
101It is to be noted that none of the psychiatrists who examined the plaintiff found her to be suffering any significant psychological condition. In particular, when seen by Dr Newlands on 4 March 2010 (on behalf of the defendant) and Dr Epstein on 25 May 2010 (on behalf of the plaintiff), both doctors considered her to be suffering mild symptoms which would not restrict her work capacity in any way. In particular, Dr Epstein considered that the low-back symptoms complained of by the plaintiff were predominantly a consequence of the organic injury and not due to a mental or behavioural condition. Again, after a consideration of all the evidence, I am satisfied the plaintiff has suffered a physically-based impairment even though identification of the precise quantum of [supervening] psychological overlay has not been precisely quantified.
102Furthermore, after viewing all of the film material, I came to the view that there were discrepancies as to how the plaintiff presented at different times. In particular, I refer to the most recent film taken on 23 June 2011, the day on which the plaintiff attended the appointment with Mr Ian Jones. When going to the appointment on the morning, the plaintiff did move in a shuffling way and on occasions seemed to be limping. However, when filmed later that day after getting off the train in Geelong, the plaintiff walked in a normal manner with no apparent limp.
103Other parts of the video revealed the plaintiff to be able to walk normally with no overt signs of back disability.[10]
[10]Reasons [99]–[103].
The trial judge then considered whether the respondent satisfied the statutory test for establishing a serious injury entitling her to claim pecuniary loss damages. His Honour set out the relevant provisions of the Act and the applicable legal principles and reached the following conclusions:
110After a consideration of all of the evidence, and bearing in mind the matters which I have raised in relation to the reliability and presentation of the plaintiff, and also bearing in mind the activities undertaken with her grandchildren, I accept the evidence of the occupational physicians, Dr Horsley and Dr Davison, that the plaintiff is capable of performing lighter forms of work up to about 20 hours per week, if so motivated. When last examined by Dr Davison in 2010, he was of the opinion that the plaintiff had a capacity to work as a general sales assistant, studio assistant, shop assistant in a toy shop, shop assistant in a baby products store, product examiner and administrative assistant. Although Dr Horsley had concerns that the plaintiff had been out of the workforce for a large number of years, and the age of the plaintiff, she considered the plaintiff to have a physical capacity for part-time work of up to 15 to 20 hours per week.[11]
[11]Reasons [110].
After referring to evidence relating to salary levels and performing some calculations, his Honour concluded as follows:
113In all the circumstances, I am not satisfied that the plaintiff has discharged her onus in establishing a ‘serious injury’ to be entitled to claim pecuniary loss damages.
114On balance, and allowing for a certain degree of unreliability and inconsistency, which I have earlier referred to, I am satisfied that the pain and suffering consequences are such that ‘when judged by a comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked, and as being at least very considerable’.
115Although accepting that the plaintiff has some limited capacity for employment, I accept that the pain and limitations that she does suffer impacts on various aspects of her life and has done for many years and will continue to do so in the foreseeable future. There is no suggestion in any of the medical evidence, that the cessation of legal proceedings or indeed at some time in the future, the pain, to the extent that the plaintiff experiences it, will be relieved by any particular treatment (other than the sheath injections which seemingly have some impact on diminishing her buttock pain).[12]
[12]Reasons [113]–[115].
The final paragraph of the trial judge’s reasons was as follows:
116Accordingly, I grant leave to the plaintiff to bring Common Law proceedings for ‘pain and suffering damages’ in respect to injuries suffered by her on or about 19 March 2003 during the course of her employment with the defendant.[13]
[13]Reasons [116].
Grounds of appeal and parties’ submissions
The grounds of appeal are as follows:
1The learned primary judge failed to make relevant findings on material questions of fact to support the ultimate conclusions in paragraphs [114] and [115] of the reasons for judgment and, in particular, the learned judge —
(a)did not state what evidence relating to the ultimate conclusions he accepted or rejected, and as a consequence did not assign any reasons for the acceptance or rejection of that evidence;
(b)did not make any findings as to what pain and suffering consequences the learned judge accepted the plaintiff had experienced and, as a consequence did not assign any reasons for the acceptance of those pain and suffering consequences; and
(c)did not provide any or any intelligible explanation for the process of reasoning which led to the conclusions in [114] and [115].
2.Accordingly, the learned judge did not give the detailed reasons required by s 134AE of the Accident Compensation Act 1985 (Vic).
In relation to (a) above, the appellant submitted that, as there was a dispute as to at least some of the respondent’s pain and suffering consequences, the trial judge was required to state what evidence he accepted or rejected and his reasons for doing so. This was said to be particularly so in circumstances where his Honour appears to have largely accepted the respondent’s version of events despite finding her not to be a ‘totally reliable witness’,[14] and despite noting ‘discrepancies as to how [she] presented at different times.’[15]
[14]Reasons [98].
[15]Reasons [102].
In relation to (b) above, the appellant contended that, notwithstanding that the trial judge found that the respondent’ pain and suffering consequences were ‘at least very considerable’,[16] he did not make findings of material fact regarding the precise nature of those consequences.
[16]Reasons [114].
In relation to (c) above, the appellant argued that the trial judge merely set out the evidence regarding pain and suffering and then expressed his conclusions at paras 114 and 115 of his reasons without explaining how he had reached those conclusions. The appellant observed that this approach to the provision of reasons was described by Nettle JA in Hunter v Transport Accident Commission[17] as being ‘about as good as useless.’[18]
[17](2005) 43 MVR 130 (‘Hunter’).
[18]Hunter (2005) 43 MVR 130, 140 [28].
The respondent submitted that the trial judge’s reasons adequately evaluated the evidence, made findings of fact and exercised a value judgement based on those facts to resolve the ultimate question about the nature and extent of the injury and the consequent impairment suffered by her.
Principles for determining adequacy of reasons
It is well-established that judicial reasons for decision must sufficiently explain the basis for any findings that are made in reaching that decision. It has been said that the reasons must disclose ‘the route that led to the answer’, ‘how or why the conclusion was reached’, ‘the process of reasoning’ or ‘the path of reasoning’.[19]
[19]Church v Echuca Regional Health (2008) 20 VR 566, 584 [90] (‘Church’); ACN 005 565 926 Pty Ltd v Snibson [2012] VSCA 31, [78] (‘Snibson’).
Thus, for example, in Franklin v Ubaldi Foods Pty Ltd,[20] Ashley JA, with whom Warren CJ and Nettle JA agreed, said:
Reasons must be such as reveal — although in a particular case it may be by necessary inference — the path of reasoning which leads to the ultimate conclusion. If reasons fail in that respect, they will not enable the losing party to know why the case was lost, they will tend to frustrate a right of appeal, and their inadequacy will in such circumstances constitute an error of law.[21]
[20][2005] VSCA 317. This case has been either cited or applied in numerous subsequent decisions. See, eg, Hesse Blind Roller Co Pty Ltd v Hamitoski [2006] VSCA 121, [19] (‘Hesse’); ACN 087 528 774 Pty Ltd v Chetcuti (2008) 21 VR 559, 566 [20] (‘Chetcuti’); Snibson [2012] VSCA 31, [79].
[21][2005] VSCA 317, [38] (citation omitted).
Similarly, in Rodda v Transport Accident Commission,[22] Hargrave AJA, with whom Ashley and Dodds-Streeton JJA agreed, said:
it is established that adequate reasons will provide an intelligible explanation of the process or path of reasoning which has led to the conclusion reached, and that a judge is required to consider and give adequate reasons in determining each of the substantial issues which have been raised for determination in the proceeding. Where there is a conflict on the evidence, and one version is accepted and the other rejected, the judge must [advert] to and assign reasons for preferring one version of the evidence over another.[23]
[22][2008] VSCA 276.
[23][2008] VSCA 276, [98]. Similar observations were made by Hargrave AJA, with whom Ashley and Dodds-Streeton JJA agreed, in Chetcuti (2008) 21 VR 559, 566 [20].
The relevant principles were recently summarised as follows by Nettle and Redlich JJA in Wodonga City Council v Braunack:[24]
It is … important that the reasons, when read as a whole, expose a path of reasoning. They should provide an intelligible explanation of the process of reasoning as to findings on material facts and the reasoning which has led from those findings to the finding as to the ultimate conclusion. Occasionally, a recitation of the facts may be enough where the path of reasoning is ‘necessarily implicit’ from the reasons as a whole but it is unlikely to be sufficient where the Court is required to weigh conflicting evidence or opinion. Reasons are not intelligible if they leave the reader to wonder which of a number of possible routes has been taken to the conclusion expressed. A failure to expose the path of reasoning is an error of law.
The requirement to refer to the evidence upon which findings are based is a requirement to analyse the evidence and to explain why some parts of it do and others do not lead to the ultimate conclusion. That requirement is not limited to the evidence that has been accepted and acted upon but extends to evidence or material which the judge has rejected. … Where evidence or an argument or an issue is rejected from consideration the trial judge is under an obligation to advert to and assign reasons for the rejection or exclusion of that matter.[25]
[24][2012] VSCA 320 (‘Braunack’).
[25]Braunack [2012] VSCA 320, [14]–[15] (citations omitted).
Reasons will be inadequate if they leave out altogether discussion and resolution of major issues and the role, if any, that those issues have been accorded in the ultimate determination.[26] Where an argument is substantial or an issue is significant, it is necessary to refer to and assign reasons for the rejection of the argument or the resolution of the issue.[27] In general, the mere recitation of evidence followed by a statement of findings, without any commentary as to why the evidence is said to lead to the findings, is insufficient to disclose a path of reasoning.[28]
[26]Hunter (2005) 43 MVR 130, 142 [35].
[27]Hunter (2005) 43 MVR 130, 137 [21].
[28]Hunter (2005) 43 MVR 130, 140 [28]; Snibson [2012] VSCA 31, [82].
In order to determine whether reasons are adequate, they must be read fairly and particular parts have to be read in the context of the reasons as a whole and the manner in which the parties conducted the trial.[29] Reasons can be adequate by a combination of what is expressly stated and the inferences that necessarily arise from what is expressly stated.[30] In some cases, the path of reasoning which led to the ultimate conclusion is necessarily implicit in a sufficiently detailed recitation of the relevant material upon which the decision was based.[31]
[29]Shock Records Pty Ltd v Jones [2006] VSCA 180, [85]; Hesse [2006] VSCA 121, [3], [19]–[22]; Church (2008) 20 VR 566, 585 [91]; Snibson [2012] VSCA 31, [81].
[30]Snibson [2012] VSCA 31, [81]; Woolworths Ltd v Warfe [2013] VSCA 22, [131].
[31]Murray Goulburn Co-op Co Ltd v Filliponi [2012] VSCA 230, [28].
A judge is not required to deal with every argument or issue that may arise in the course of a case.[32] Matters which are obvious may not need to be restated and, where the decision involves a value judgement, it may not be possible to express the reasons for the value judgement as precisely as other findings.[33]
[32]Hunter (2005) 43 MVR 130, 137 [21].
[33]Hunter (2005) 43 MVR 130, 137 [22].
In the context of an application under s 134AB(16)(b) of the Act, reasons may be relatively brief and non exhaustive, provided that they are complete and fulfil the essential function of informing a litigant why he or she lost.[34] A catalogue of the factual findings on consequences, if complete, will frequently speak for itself.[35] In Kelso v Tatiara Meat Co Pty Ltd,[36] Dodds-Streeton JA, with whom Buchanan, Nettle, Ashley and Kellam JJA agreed, stated:
The judge must identify the consequences and, having made the relevant comparison, decide whether or not the extent and character of the consequences impress him or her as very considerable or not. I am not persuaded that, in such a context, there must be, in every case, an explanation or analytical bridge linking the factual findings to the conclusion, or that a statement of factual findings and principles equally applicable to either conclusion is necessarily flawed.
…
In some s 134AB(16)(b) cases, however, a list of the consequences and a conclusion, without more, will not suffice. If there is an apparent dissonance between the consequences and the conclusion, the reader will be ‘left to wonder’, and the essential function of the reasons for judgment will be unfulfilled.[37]
[34]Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, 628 [190]–[191] (‘Kelso’).
[35]Kelso (2007) 17 VR 592, 628 [192].
[36](2007) 17 VR 592.
[37]Kelso (2007) 17 VR 592, 628–9 [192], [194].
Decision
Relative to the trial judge’s detailed summary of the evidence, his Honour’s factual findings and explanations for those findings are brief. The express factual findings that are relevant to the pain and suffering consequences of the respondent’s injury may be summarised as follows:
(a) The respondent suffered the low-back pain of which she complained. The pain had an organic basis. The pain was not made up. Consistent with the evidence of Ms Neagle, the pain was ongoing.
(b) The respondent’s low-back pain was not as severe as she portrayed. She wished to impress on the Court what she considered to be the severity of her condition. This was probably unconscious. She did not wilfully set out to deceive any doctor and the treating doctors’ diagnoses of her back pain did not result from any inaccurate history provided to them by the respondent.
(c) The respondent had undergone a reasonably invasive procedure involving the discogram in an effort to diagnose the source of her pain as well as sheath injections which caused some improvement in her right buttock and leg pain.
(d) Non-organic factors played a role in the respondent’s presentation. She suffered a psychological stress reaction to her underlying organic condition. Although the precise contribution of the respondent’s psychological condition to her symptoms had not been quantified, it was a mild condition which did not restrict her work capacity in any way.
(e) The respondent is only capable of performing lighter forms of work up to about 20 hours per week.
(f) Even allowing for a degree of unreliability and inconsistency in the respondent’s evidence about the severity of her pain and suffering, the pain and suffering consequences of the injury were very considerable and would continue in the foreseeable future.
(g) The pain and physical limitations that the respondent suffers have impacted on various aspects of her life for many years and will continue to do so in the foreseeable future. There is no prospect that her low-back pain (as distinct from the pain in the buttock) will be relieved in the future by any particular treatment.
The adequacy of the trial judge’s reasons cannot be assessed solely by reference to his Honour’s express findings. It is well-established that reasons must be read as a whole and that they may be adequate by a combination of what is expressly stated and the inferences that necessarily arise from what is expressly stated.[38]
[38]See above [62].
The following findings can be inferred when the trial judge’s reasons are read as a whole:
(a) The trial judge accepted all the evidence of Ms Neagle. Accordingly, his Honour implicitly found that, since the respondent sustained the injury, she was not a very fit and active woman or a very keen gardener; that the respondent required assistance with vacuuming, cleaning, general housework and gardening; that the respondent had ongoing difficulty in sitting, walking or standing for lengthy periods; that the respondent’s pain sometimes drove her to tears and to be cranky and short tempered with her family; and that the respondent no longer enjoys the social life that she previously enjoyed, including playing cards regularly.
(b) As the trial judge accepted the evidence of Ms Neagle, he must have accepted the respondent’s evidence insofar as it was consistent with Ms Neagle’s evidence. Accordingly, his Honour implicitly found that as a result of the injury, the respondent’s recreational activities have been very restricted; that the respondent has withdrawn socially; that the respondent is limited in what she can do in the garden and around her house; that the respondent cannot sit or stand for very long and her capacity to walk is limited; and that the respondent’s low-back pain was constant.
(c) The trial judge stated that he bore in mind ‘the activities undertaken with [the respondent’s] grandchildren’. This indicates that his Honour accepted the respondent’s evidence regarding her activities with her grandchildren. Accordingly, the trial judge implicitly found that the respondent sometimes looks after her grandchildren and walks them to and from a child-minding facility and that, while she has put the grandchildren into prams and changed nappies, she has lifted them with ‘great difficulty’.
(d) The fact that the trial judge described the procedure involving the discogram as ‘reasonably invasive’ indicates that his Honour found that the respondent experienced very considerable pain, otherwise she would not have undertaken the procedure. The fact that the trial judge referred to Mr Carey’s concerns about the respondent’s regular consumption of opiate analgesics (OxyContin and Endone) also indicates that his Honour accepted that the intensity of the respondent’s pain was very considerable and required strong medication.
(e) As the trial judge accepted Dr Horsley’s opinion about the respondent’s work capacity and quoted from her report dated 28 April 2011, his Honour must have accepted Dr Horsley’s reasons for that opinion. As appears at [32] above, the parts of the report that his Honour quoted include Dr Horsley’s conclusions that the respondent had limited physical tolerances and that she had reached ‘maximal medical improvement’. Immediately above the parts of the report that his Honour quoted, Dr Horsley stated the following:
I believe that the following work restrictions apply:
·Avoidance of repetitive overreaching;
·Avoidance of repetitive pushing and pulling;
·Avoidance of lifting items greater than 8–10kgs except on an occasional basis;
·Avoidance of lifting items up to 5–8kgs on a repetitive basis;
·Avoidance of static postures;
·Avoidance of static forward flexion;
·Avoidance of repetitive stair climbing;
·Avoidance of working in awkward and confined spaces.
Her functional tolerances remain reduced. She currently has:
·A sitting tolerance dependent upon the chair, from 10–15 minutes up to 60 minutes;
·A dynamic standing tolerance of 30 minutes;
·A static standing tolerance of 5 minutes;
·A walking tolerance of 30 minutes;
·She tends not to drive. In an automatic vehicle she has a driving tolerance of up to 30 minutes.
The report went on to state that ‘the physical restrictions that are outlined above … apply to social, domestic and recreational activities as well as work capacity.’ As the above quoted passages are integral to Dr Horsley’s opinion which the trial judge expressly adopted, his Honour must have also adopted those passages. Accordingly, his Honour implicitly found that the respondent’s ability to engage in day‑to-day social, domestic and recreational activities was significantly restricted.
(f) As the trial judge accepted Dr Davison’s opinion about the respondent’s work capacity, his Honour must have accepted Dr Davison’s reasons for that opinion. The physical restrictions that affected the respondent’s work capacity, as set out in Dr Davison’s report dated 6 October 2010,[39] were of a nature that they would also affect her day-to-day social, domestic and recreational activities. Although the trial judge referred to Dr Davison’s opinion in his report dated 15 March 2010 that there was a functional component to the respondent’s presentation, his Honour must have accepted Dr Davison’s statement in his report dated 6 October 2010 that the functional component was ‘relatively minor’.
[39]See above [42].
(g) As the trial judge concluded that the pain and suffering consequences of the respondent’s injury were ‘at least very considerable’, his Honour must have accepted the medical evidence that was consistent with this conclusion. That evidence included Dr Verrills’ opinion that the respondent suffered significant lumbar somatic pain and Dr Muir’s opinion that the respondent suffered significant pain at the base of the spine. His Honour obviously preferred these opinions of two of the respondent’s treating doctors to the opinion of the appellant’s medico‑legal expert, Mr Clive Jones, which was to the effect that the respondent was feigning disability.
(h) As the trial judge concluded that the respondent’s considerable pain and suffering will continue in the foreseeable future, his Honour must have accepted the medical evidence that was consistent with this conclusion. That evidence included Dr Trainor’s opinion that the respondent was suffering chronic lumbosacral pain, Dr Westh’s opinion that the respondent suffered chronic mechanical low-back pain, Dr Horsley’s opinion that the respondent was suffering ongoing mechanical back pain and had reached ‘maximal medical improvement’ and Dr Epstein’s opinion that the respondent suffered chronic pain, discomfort and disability. His Honour obviously rejected the contrary opinion of Mr Clive Jones.
The express findings set out at [65] above and the inferred findings set out at [67] above, in combination, adequately reveal the trial judge’s path of reasoning. A consideration of those matters clearly indicates that there is no dissonance between the trial judge’s factual findings and his Honour’s conclusions, and that the appellant could have no doubt about why the case was lost.[40]
[40]Kelso (2007) 17 VR 592, 628 [191], 629 [194].
The appellant urged upon us to read the trial judge’s reasons in a compartmentalised fashion. In particular, the appellant contended that para 99 to para 103 of his Honour’s reasons related only to his conclusion that the respondent suffered a compensable injury, that para 104 to para 113 related only to the pecuniary loss consequences of the injury and that the only paragraphs that related to the pain and suffering consequences of the injury are the bare conclusionary paras 114 and 115. I reject this contention. As I have already stated, the authorities make it clear that reasons for decision must be read as a whole. When this approach is adopted, it is clear that his Honour’s reasons do not comprise discrete and unconnected components which are intended to be read in isolation.
This proposition can be illustrated by reference to para 99 of the trial judge’s reasons which is set out at [48] above. Senior counsel for the appellant initially conceded that para 99 related to the compensable nature of the respondent’s injury as well as to the pain and suffering consequences of the injury. He subsequently withdrew the concession. In my opinion the concession was appropriate because para 99 refers to Ms Neagle’s evidence which relates almost exclusively to the pain and suffering consequences of the injury.
The appellant submitted that the trial judge’s reasons fell short of the standard required by Hunter[41] because his Honour did not explain why he accepted the opinions of some medical practitioners in preference to the evidence of other medical practitioners. This criticism is misplaced. The main issue upon which the medical evidence differed concerned the nature and cause of the respondent’s injury as distinct from the pain and suffering consequences or their likely duration. There was strong support among the respondent’s treating doctors and experts and on the part of two of the appellant’s experts (Dr Wood and Dr Newlands) for the proposition that the source of the respondent’s pain was somatic and that the secondary psychological impact was ‘mild’. The trial judge’s express and inferred factual findings make it sufficiently clear why his Honour preferred the evidence of the medical practitioners who agreed with this diagnosis.
[41](2005) 43 MVR 130.
The appellant also contended that, as the trial judge accepted that there was a psychological component to the respondent’s condition, his Honour should have explained how he had quantified and disentangled that component from the organic component.[42] That criticism is also misplaced. His Honour’s reasons make it clear that he accepted the evidence of Dr Epstein and Dr Newlands that the psychological component was mild and had no impact on the respondent’s work capacity.[43] His Honour obviously concluded that the contribution of the psychological component to the respondent’s symptoms was immaterial.
[42]See s 134AB(38)(h) of the Act.
[43]See para 101 of the Reasons at [48] above.
Finally, the appellant submitted that the trial judge’s reasons were inadequate on the basis that, having concluded that the respondent exaggerated the severity of her physical symptoms and that she was not a totally reliable witness, his Honour was obliged to identify the extent to which he accepted the respondent’s evidence. This submission must be rejected. The trial judge found that, even allowing for ‘a certain degree of unreliability and inconsistency’, the respondent had satisfied him that the pain and suffering consequences of the injury were very considerable and would continue in the foreseeable future.
Conclusion
For the above reasons, I would dismiss the appeal.
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