CAMPBELLTOWN CITY COUNCIL v FREW

LOWER COURT District Court JURISDICTION : LOWER COURT DC 5469/00 FILE NUMBER(S) : LOWER COURT Black DCJ JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40613/02

MASON P SANTOW JA TOBIAS JA

CAMPBELLTOWN CITY COUNCIL v Emma-Lea FREW by her Tutor Susan FREW

The respondent had been swimming at the pool at the appellant's Eagle Vale Leisure Centre. She came out of the water, and was climbing the tiered seating area to where she had left her belongings when she slipped, breaking her nose, tearing ligaments in her right knee and sustaining other injuries. She was 13½ at the time of the incident. It was found that she had walked straight up the tiers, managing each tier in a single step without running, leaping or moving quickly and that she placed each foot on the metal and rubber nosing strip adhered to the edge of each tier. Although the tiered area had two locations where intermediate steps had been placed between the tiers, the respondent did not use them. A verdict and judgment was entered in the District Court in favour of the respondent for $121,820.

HELD per Mason P, allowing the appeal (Santow JA and Tobias JA agreeing)

1. The trial judge failed to address the issue of negligence separately by reference to the calculus in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8 . [14] [24]-[25]

Applying the Shirt calculus [34] : (a) There was a foreseeable risk that persons using the tiers as stairs might fall, especially if their feet were wet. (b) There was a risk that such persons might suffer significant injury. (c) The probability of the risk occurring was fairly slight, given the absence of evidence of earlier falls, the protection offered by the existing nosing, the obviousness of the risk of slipping and the ensuing likelihood that people would take care for their own safety if they chose to avoid the intermediate stairs: Francis v Lewis [2003] NSWCA 152. [25] [28] (d) The expense, difficulty and convenience of providing better protection on the nosing was not adequately addressed in the evidence.

2. After consideration of the above factors, the Court must determine whether the Council acted unreasonably. The Council was not obliged to ensure that the steps offered as much friction as possible: North Sydney Council v Plater [2002] NSWCA 225 at [43] . It was only obliged to take such care as was reasonable in all the circumstances. The ultimate test is whether the respondent has established that the Council was unreasonable in not doing more than it did, assuming that more could have been done: Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204. [33], [35], [37] -[38] (a) The reasonableness of the Council's conduct in relation to the nosing must be assessed bearing in mind that the seating tiers served a dual function. The nosing therefore had to provide adequate slip resistance and a reasonably comfortable seat edge. [22] (b) The precise deficiencies in the nosing were not identified in the trial judge's reasoning. In light of the totality of the evidence, there is no basis for concluding that there was an alternative type of nosing available that would have saved the respondent from her fall. Similarly, there was no evidence to support the trial judge's conclusion that the appellant could have prevented people from using the tiers as steps without difficulty. [14], [27], [36] (c) The reasonableness of a defendant's response to a foreseeable risk must be measured having regard to the relative unlikelihood that plaintiffs will expose themselves to the risk. The accident would not have occurred if the respondent had climbed up the tiers two paces per tier or if she had placed her extended stride anywhere but the very point of the nosing. [ 37] ************

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40613/02

MASON P SANTOW JA TOBIAS JA

CAMPBELLTOWN CITY COUNCIL v Emma-Lea FREW by her Tutor Susan FREW JUDGMENT 1 MASON P: The appellant Council challenges a verdict and judgment entered in the District Court in favour of the respondent for $121,820. 2 In October 1999 the respondent was injured in a fall at the Eagle Vale Leisure Centre owned and operated by the appellant. She broke her nose, tore ligaments in her right knee and suffered other injuries. 3 The Centre includes a 50 metre swimming pool. Adjacent to its southern side and running parallel with it is a tiered area for seating or leaving clothes. There are five platforms in the shape of large steps rising back from the pool. The tiered area is a little over 22 metres long and it has a depth (from the back wall to the pool surround level) of approximately 4.7 metres. The rise of each tier is approximately 400 mm and the going or depth approximately 800 mm. 4 The surfaces surrounding the pool and the tiered platforms are covered with a compound rubber material that is slip-resistant. 5 Nosing strips are fitted to each of the five nosings of the tiers, with those strips extending the full length of the tiered area. The nosing strips are a combination of smooth metal and grooved rubber. Their profile is approximately 10mm above the level of the platforms. Their depth is approximately 105mm. There are two grooved rubber sections on the nosing strips, one 47mm wide and the other 24mm wide. There is a smooth metal section located at the nosing which is 8mm wide and which curves at the point of the nosing. There is a middle metal strip 10mm wide which separates the two rubber sections. There is another metal strip 16mm wide at the point farthest from the nosing itself, where the nosing strip joins the surface of the platform or tier. 6 The tiered area has two locations in which intermediate steps are placed on each of the platform levels. These are surfaced differently to the tiered platforms, but they are black like the tiered platforms. They do not have nosings. 7 The respondent was swimming at the pool which she attended frequently. She climbed out of the water and started to walk up the tiers to where she had left her belongings in the left-hand corner of the top level. She walked straight up the tiers without running, leaping or moving quickly. She went up two of the tiered levels, a single step at a time, placing her foot on the nosing of each tier. She was about to place her foot on the third tier when her right foot, which was on the front of the second step, slipped. She fell forward, striking her right knee on the second nosing and her face on the third nosing. She said in effect that she felt the metal and rubber of the nosing under the ball of her foot as she took each step. 8 These were the mechanics of the fall as described by the respondent and found by the learned trial judge. There were variants of the fall recorded in some of the respondent's medical histories, but the primary judge was entitled to accept the respondent's testimony on the matter. The fact that some of the early medical evidence refers to the respondent injuring her left knee does not mean that she did not also injure her right knee or that the judge was bound to reject her evidence as to how the accident occurred. 9 The primary judge was also entitled on the evidence to find, as he did, that although this was a seating area, it was to the knowledge of the Council, used as stairs from time to time by visitors, particularly children. There was no requirement by notice nor was there universal practice of using the intermediate steps as the only way of accessing the upper tiers. The fact that nosings were placed on the tiers also tends to confirm the Council's general awareness that people used the tiers as steps. 10 It is obvious that some of those people would have wet feet. 11 At trial, the respondent relied upon two reports of Mr Neil Adams and the appellant relied upon two reports of Dr John Cooke. Each expert witness is a skilled and experienced safety management consultant. The appellant objected to parts of Mr Adams' report, based upon principles stated by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. The objections were overruled and they are repeated as one of the grounds of appeal. Neither expert was cross-examined at trial. As is often the case, parts of the reports were argumentative or proceeded on contestable assumptions as to the mechanics of the actual fall. The trial judge indicated that the admission of the reports did not preclude the parties from challenging the experts' views in light of the true facts about the accident. 12 Mr Adams reported that the rises and goings of the tiers were excessive compared to the requirements for stairways of Ordinance 70, the Building Code and Australian Standard 1657. It is not clear whether he was indicating that the tiers actually contravened any of these building standards (cf Blue 9-10). He did not provide any chapter and verse showing why they applied directly. Dr Cooke explained cogently why the tiers did not have to be designed as steps even though they could be used as such (Blue 77). I think that the point being made by Mr Adams was that, to the extent that the tiers were usable as stairs, they did not meet the size standards for stairs proper. This point is fairly obvious, but not of great relevance or cogency, in my view. The trial judge said that one of his reasons for preferring Mr Adams was that he, unlike Dr Cooke, thought it proper to treat these tiers as stairs or analogous with stairs. I do not think that this criticism of Dr Cooke was justified in the circumstances, but again nothing much turns upon it. 13 The nub of the trial judge's reasoning was as follows: I find that the plaintiff was exercising appropriate care for her own safety. She positioned her feet sensibly and she fell because of the inadequacy of the nosing given the size of the stride that was involved in negotiating this area and the fact that the plaintiff, and others, would have wet feet after leaving the pool.

In my judgment her accident could have been prevented in a number of ways. Either by using better nosings as suggested by [Mr] Adams, or preventing people, and by that I mean in particular children, such as the plaintiff, from using this seating area as steps or stairs. I do not see that that would have presented any particular difficulty.

The defence contains allegations of contributory negligence against the plaintiff. I reject all of them. 14 The judgment was given on the day following the hearing. Even allowing for its nearly extemporary nature, it was in my view inadequate in the exposure of the critical reasoning process. The precise deficiencies of the nosing were not identified, nor the means whereby the Council could or should have prevented people from using the tiers as stairs. The practicalities of doing more to address the two defects were not addressed. The judgment also proceeded, apparently, on the basis that failure to have prevented the accident in the ways identified in the reasoning necessarily constituted a breach of the occupier's duty of care: in other words, the judgment failed to address separately the issue of negligent breach by reference to the well-known calculus found in Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-8. 15 However, the judgment was not assailed on this basis and this Court is in as good a position as the primary judge to apply the written expert evidence to the facts as found. It is appropriate that we should initially approach the matter through the prism of the trial judge's preference for and acceptance of Mr Adams' report. 16 It is convenient to defer consideration of the evidentiary ground of appeal based upon Makita until it is seen precisely which parts of the Adams reports were critical to the plaintiff's success at first instance. Mr Adams voiced several criticisms about the safety of the pool area, including criticisms about the intermediate steps or stairs. Many of these have no continuing relevance to the case, in light of the findings as to the mechanics of the particular accident. 17 In portions of his first report to which objection was taken at trial, Mr Adams said: Given the nature and dimensions of the nosings strips, I was not able to perform measurements of coefficients of friction on those strips. However, on the basis of my subjective assessment, I believe that those nosings strips are unlikely to be sufficiently slip resistant when wet. In particular, I would consider the smooth metal sections of the strips as inappropriate for an area that would quite obviously become wet from time to time, and which would be walked on with wet feet by patrons of the centre. … The tiered area where Ms Frew experienced her slip and fall fails to meet the requirements of Ordinance 70, the BCA, and of AS 1657, in relation to the dimensions of the goings and rises, the dimensional consistency, the relationships between the goings and rises, and in relation to the handrail. Specifically: the rises were excessively high for a stairway; the goings were also excessive; and the handrail was made difficult to use due to the installation of perspex. Similarly, the intermediate steps that have been provided fail to meet each of those criterion. Specifically: some (if not all) of the rises were excessively high for a stairway and there was excessive variation between the rise heights; each of the goings was also excessive and there was excessive variation between the goings; there was no handrail at all. In addition, the presence of the intermediate steps was not visually obvious. Further, I believe that the nosing strips that were provided on the nosing of each of the tiers (and not on the intermediate steps) would not when wet have been adequately slip resistant to prevent a slip and fall of the type experienced by Ms Frew. The risk to pedestrians of experiencing a fall when using the tiered area as a stairway would have been increased by that combination of deficiencies and would have been considerably greater than would have characterized a properly designed and constructed stairway. … Reasonable preventative actions that could have been implemented by the defendant would include: … (iii) More appropriate anti-slip strips that were able to provide adequate slip resistance when lubricated with water could (should) have been fitted to each of the treads in the stairway, as well as to the nosing of each tier…. 18 In addition to objecting to the admissibility of these portions of the first Adams report, the appellant submits that the verdict cannot properly rest upon them. Mr Adams' criticism of the nosing material was explicitly "subjective", without any suggestion as to the impossibility or impracticality in obtaining some scientific measure of slipperiness of the smooth metal sections. Nor did Mr Adams indicate the nature of the "more appropriate anti-slip strips" to which he adverts in general terms. 19 These submissions have weight, but it is not necessary to resolve the appeal solely by reference to the debatable evidentiary or probative deficiencies of the first Adams report. The totality of the expert evidence should be considered, reconciled if necessary, and then applied to the findings about the mechanics of the fall in light of the well-established method of determining whether a duty of care has been breached. The judgment as to lack of due care remains that of the court. 20 Dr Cooke deals with the issue of slip resistance in the following terms in his first report : 4.1 I now turn to the question of the slip resistance of the seating platforms and intermediate step treads under wet conditions. I measured the dynamic coefficient of friction of the rubber material used on the platforms (similar to the material used on the treads and risers of the intermediate steps), with a "Pendulum" skid resistance tester specified in Appendix A of AS/NZS 3661.1:1993 for testing a wet pedestrian surface for compliance with the recommended minimum dynamic coefficient of friction of 0.4 in cl 5.1 of AS/NZS 3661.1:1993. The "Pendulum" can be seen in place for the test in Photograph No 7 in Appendix A. Extracts from AS/NZS 3661.1:1993 are in Appendix F. The dynamic coefficient of friction of the wet surface was found to be 0.54, which is well above the recommended minimum of 0.4. Accordingly, the step treads comply with BCA cl D2.13(b)(v). There is no need for additional anti-slip strips as suggested by Mr Adams on page 9, because the entire tread surface is slip resistant. However, as the plaintiff was not using the intermediate steps their design and condition is not relevant to causation. 4.2 The nosings of the seating platforms are required to provide a suitable surface for each for the dual functions of seating and optional access. The nosing is an aluminium framed proprietary nosing with a ribbed rubber or synthetic rubber insert (Photograph No 6). This gives the necessary slip resistant support for the foot and also gives a suitable edge for the platforms when used as seats. The nosing posed no danger to the plaintiff if she had taken reasonable care. 4.3 As with any stair nosing, she was in danger of slipping off the nosing if she did not place her foot fully on the nosing, particularly with wet feet. The stance she adopted, with the back foot placed on the nosing and the front foot stretched out about 800mm towards the nosing above, placed her at risk of slipping off the lower nosing, particularly if she was running or leaping or moving quickly. …. 5.6 The nosings of the seating tiers do not pose a danger to pedestrians taking reasonable care. The nosings are suitable for the dual functions of seat edge and step nosing. Highlighting of the nosings would have had no bearing on causation. The plaintiff did not fall because she could not see the nosings. 21 In a supplementary report Dr Cooke said: 4. I have analysed the design of the nosings in paragraphs 4.2 and 5.6 of my initial report. In my view the nosing is suitable for the dual uses of the seating tiers as seats and as tread nosings when the tiers perform the function of steps. 5. The nosing provides adequate slip resistance and a reasonably comfortable seat edge for spectators sitting on the tiers with bare legs. Stair nosings are available with a variety of front edge profiles, including less rounded edges than the nosing used on the tiers. However, the rounded nosing used is more suitable than a square edged nosing as the primary function of the tiers is to provide seating. When the tiers are used as steps, the rounded nosing is suitable for the widely spaced risers. 6. As discussed in my initial report (particularly paragraph 5.3), it is apparent from the description of the accident that the plaintiff fell because she did not take reasonable care for her own safety. She would have had no difficulty stepping between the tiers if she had taken reasonable care. As with all step nosings, there is a risk of the foot slipping off the outer edge if the foot is placed incorrectly on the nosing. In the plaintiff's case my view is that she lost her footing because she was bounding up the tiers, as a result of which she did not put her foot securely on the nosing of one of the tiers.

22 This evidence addressed a matter not addressed by Mr Adams in his first report, namely the need for the nosing used on the seating tiers to serve the dual functions of providing adequate slip resistance and a reasonably comfortable seat edge for spectators sitting with bare legs. It is clear, in my view, that the reasonableness of the Council's conduct must be assessed with both functions being regarded as relevant. 23 Mr Adams responded to Dr Cooke in his second report, stating: I note that Dr Cooke refers to the dual-purpose nature of the tier platforms and the need for the nosing strips to be comfortable for seated persons as well as provide tread nosings. There are nosing strips available that could provide at least a similar level of comfort to seated persons as would the strips that were present on those treads, but without compromising the safety of pedestrians who rely on those strips for adequate frictional contact with the tread as they mount the tiers. As noted previously, and as stated in my original report, I believe the nosing strips that I inspected are not suitable for use in wet areas, particularly not for treads with such high rises as those that exist in the tiered area.

24 As indicated already, the trial judge's reasoning is unsatisfactory in its failure to address whether the Council's conduct was unreasonable in all the circumstances. It is not enough to point (implicitly) to the foreseeability of persons using the tiers as stairs slipping with their wet feet. Nor is it enough to be able - with the benefit of hindsight - to point to something more that might have been done. 25 In Francis v Lewis [2003] NSWCA 152 there is general discussion about an occupier's duty of care with reference to stairs. In my reasons (with which Hodgson JA substantially agreed and Tobias JA agreed) I said (at [40]-[41]): Foreseeability of risk of injury is not determinative of breach of duty of care…. The duty is one of reasonable care, not whether safety could have been improved by some modification. The duty is not confined to one owed to those who are careful for their own safety, but it is relevant to take into account that plaintiffs are themselves expected to act reasonably and take care for their own safety when determining what is reasonable (see generally Phillis v Daly (1988) 15 NSWLR 65 at 74, David Jones Limited v Bates [2001] NSWCA 233, Waverley Municipal Council v Swain [2003] NSWCA 61 at [114]).

In recent years, this Court has emphasised that no stairs are perfectly safe and that it is wrong to suggest that a plaintiff who is injured by falling on stairs has prima facie some cause of action (see Baulkham Hills Shire Council v Pascoe [1999] NSWCA 431 at [12], North Sydney Council v Plater [2002] NSWCA 225 at [43]-[44], Owners Strata Plan 30889 v Perrine [2002] NSWCA 324). In Wilkinson v Law Courts Ltd [2001] NSWCA 196, Heydon JA, with whom Meagher JA and Rolfe AJA agreed, said at [32]: Stairs are inherently, but obviously, dangerous. Many measures might have been taken to make the stairs as safe as human skill could possibly make them; but the duty is only to take care which is reasonable under the circumstances. Among the essential circumstances is the following fact: "persons using steps may misjudge their footing and slip or trip but this is an everyday risk which members of the public avoid by taking care for their own safety": Stannus v Graham (1994) Aust Torts Reports 81-297 at 61,566 per Handley JA.

26 The present case was one in which there was no evidence of any earlier falls due to inadequate slip-resistance of the nosing on the tiers. This is relevant, but in no way determinative (see Francis at [57]; Fairfield City Council v Petro [2003] NSWCA 150). This present case was also one where there was no evidence of common practice or published standards in relation to the best or even a reasonable method of dealing with the problems arising from persons choosing to climb up the tiers as the respondent did (cf Francis at [42]-[43]). 27 The alternative basis for the finding of negligence by the trial judge was that the accident could have been avoided by preventing people, particularly children, from using this seating area as steps or stairs. Judge Black said that he did not see that this would have presented any particular difficulty. There was however no support for this conclusion in the evidence of Mr Adams and there was contra-indicating evidence from Dr Cooke in the portions of his first report demonstrating that this was an architecturally-appropriate method of providing seating for spectators at sporting events in general (see ss3.6, 3.9-3.11, 5.1). No evidence was led at the trial to indicate that there was anything unusual or inappropriate in this type of tiered seating. To have prevented direct access to it by a barrier at pool level would have created its own difficulties from a safety and amenity point of view. These issues were simply not explored at trial. Neither expert suggested that warning signs would have prevented use of the tiers as steps, although Mr Adams thought that they were desirable. In my view, this was not a case where the absence of a sign was causative of the particular fall. 28 The finding that users may step up the tiers rather than use the intermediate steps was well open. The respondent had done this many times before. The Council must have recognised this practice when it put the nosings on the tiers. The content of the ensuing duty of care also had to take account of the fact that some users would be children and many users would have wet feet. But there were also factors tending the opposite way. The content of the relevant duty included recognition that some risk of slipping was obvious to anyone at least as old as the respondent and that a person choosing to step up the tiers would be likely to exercise some care for his or her own safety (see generally Francis at [40]). 29 Some of Dr Cooke's reports sought to draw the inference that the respondent must have been running when she slipped and fell. The trial judge was not bound to reach this conclusion and he was, as already indicated, entitled to find as a fact that the respondent was not running, leaping or moving quickly. Whether he was correct to infer from these primary findings that the respondent exercised reasonable care for her own safety is another matter. 30 Both parties must proceed from the primary findings about what I have called the mechanics of the accident. 31 The respondent had just come out of the pool. She climbed up the tiers using only one step per level and placing her obviously wet foot on the nosing, as distinct from the centre of 800 mm platform or tier. In my view, this was fraught with a significant and obvious degree of risk which unfortunately came home. 32 Mr Adams correctly observed that a step with a horizontal distance of approximately 80cm and a vertical distance of apparently 40cm is a large step, albeit one within the capacity of a reasonably fit and active 13 year old girl without running, leaping or moving quickly (Blue 27). Dr Cooke also said that the respondent must have been taking very large strides if she was not running (Blue 75). The respondent was 13½ years old at the time of the accident and her height was approximately five feet eight inches. She was therefore tall enough to climb up the tiers in the way she did if she chose to do so. Nevertheless, the stepping would have been quite a stretch (upwards) given that the hypotenuse of a right angled triangle whose bases are 400mm and 800mm is approximately 895mm. 33 Possibly no amount of anti-slip protection on the nosing would have avoided any and every slip by a person placing his or her wet foot on the point of the nosing. But that is not the critical issue. The ultimate question remains whether the respondent established that the Council was unreasonable in not doing more than it did, assuming that more could have been done (see Van Der Sluice v Display Craft Pty Ltd [2002] NSWCA 204 at [83]). 34 Applying the Shirt calculus:

• there was a foreseeable risk that persons using the tiers as stairs might fall, especially if their feet were wet;

• the risk was that they might suffer significant injury;

• the probability of the risk occurring would be fairly slight, given the absence of evidence of earlier falls, the protection offered by the existing nosing, the obviousness of the risk of slipping and the ensuing likelihood that people would take care for their own safety if they chose to avoid the intermediate stairs. There were clearly safer ways of climbing than that chosen by the respondent, for example she could have taken two steps per level or at least put her feet in the middle of the tier.

• the expense, difficulty and convenience of providing better protection on the nosing is not addressed in the evidence beyond Mr Adam's "subjective" conclusion in his first report and the generalised reference in his second report to strips that would not compromise the safety of pedestrians who relied on them for "adequate frictional contact" . Even if these conclusions, stemming presumably from experience, are worthy of some weight (cf Makita ) the problem remains (for the respondent) that it is unclear what better nosing is (reasonably) available. 35 After these factors are considered and weighed, the court must still consider whether it is satisfied that the Council acted unreasonably. 36 The material in Mr Adams' second report provides a basis for concluding that a better type of nosing is available, subject to the Makita point and the problem of the weight to be given to the generalised and somewhat argumentative assertions in that report. Mr Adams was not cross-examined, but neither was Dr Cooke. In any event, the tribunal of fact is not bound to accept material expressed by Mr Adams in this vague and fairly unsatisfactory manner that lies close to an ultimate issue of primary fact. This Court is in as good a position as the trial judge to resolve the factual matters pertinent to the application of the Shirt calculus. Little or no weight can be given to the primary judge's conclusions which, as indicated already, are spare to the point of being totally unhelpful. Looking at the totality of the evidence, I remain unpersuaded as to the availability of an alternative type of nosing that would have saved this respondent from her fall. 37 I also rest my decision on an additional basis. Taking Mr Adams' evidence at its highest, I would not find that the Council was negligent or that its negligence contributed to the accident. Two separate propositions are involved, but they coalesce in the circumstances. To establish that some better protection is available is not to establish that it was negligent to do what was done. Nor does it necessarily prove that to have done more would have prevented the particular accident from occurring. Here the accident stemmed from the extreme carelessness of the respondent's method of climbing up these tiers. A plaintiff's contributory negligence is not a complete defence at law, but the reasonableness of a defendant's response to a foreseeable risk must be measured having regard to the relative unlikelihood that plaintiffs will expose themselves to the risk. The accident would not have occurred, in my view, if the respondent had climbed up the tiers two paces per tier or if she had placed her extended stride anywhere but the very point of the nosing. 38 The Council has not been shown to have been negligent in failing to do more to prevent this unfortunate mishap. It was not obliged to ensure that the steps offered as much friction at the nose as possible (North Sydney Council v Plater at [43]), only to take such care as was reasonable in all the circumstances. 39 Other issues were debated in the appeal, but they fall away. 40 I propose that:

2. The verdict and judgment of the District Court is set aside and in lieu thereof there should be a verdict and judgment for the defendant with costs. 3. The respondent is to pay the appellant's costs of the appeal and to have a certificate under the Suitors' Fund Act if qualified.

41 SANTOW JA: I agree with Mason P. 42 TOBIAS JA: I agree with Mason P. **********

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