JFIT Holdings Pty Ltd t/as New Dimensions Health & Fitness v Powell - [2021] NSWCA 137 - NSWCA 2021 case summary — Zoe

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JFIT Holdings Pty Ltd t/as New Dimensions Health & Fitness v Powell

[2021] NSWCA 137

Court of Appeal (NSW)|2021-03-29|Before: White JA, Harrison J

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2021-03-29

Before

White JA, Harrison J

Catchwords

FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253 Rail Corporation of New South Wales v Donald
Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330
Miller v Lithgow City Council (2015) 91 NSWLR 752

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Original judgment source is linked above.

Catchwords

FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253 Rail Corporation of New South Wales v DonaldStaff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330Miller v Lithgow City Council (2015) 91 NSWLR 752

Judgment (16 paragraphs)

[1]

Solicitors: McCabe Curwood (Appellant) Beilby Poulden Costello (Respondent) File Number(s): 2020/193558 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Civil Citation: [2020] NSWDC 264 Date of Decision: 4 June 2020 Before: Levy SC DCJ File Number(s): 2019/16004

[2]

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[3]

HEADNOTE [This headnote is not to be read as part of the judgment] On 4 February 2016 the respondent (Ms Powell) was injured at a gymnasium (New Dimensions) operated by the appellant (JFIT) when she lifted a 25 kilogram weight plate from the floor to store it on a tree rack. The weight plate had been left on the floor along with other equipment, by another user of the gym, and needed to be moved for Ms Powell to be able to do the exercise she intended. It was a rule of gym membership that members put away equipment after use, and signs to that effect were posted. However, equipment being left out was a common problem following "tradies' hour", which was from 3-5 pm each weekday. A checklist instructed staff rostered on the afternoon-evening shift to "put ALL weights away". Ms Powell's injury occurred late on a Thursday afternoon. As a result of her injury she suffered disc protrusion and underwent multiple surgeries. Ms Powell commenced proceedings against JFIT in the District Court claiming damages for the personal injury she suffered, which she alleged was caused by the negligence of the New Dimensions employees (for which JFIT was vicariously liable). JFIT denied liability, asserted that Ms Powell was contributorily negligent and claimed a defence of waiver. The primary judge found for Ms Powell and awarded her damages of $551,097.62. JFIT appealed against the findings on liability to the Court of Appeal, asserting that the primary judge erred in failing properly to identify the risk of harm, determining that the risk was not insignificant, finding that there was a breach of duty and that such breach was causative of the respondent's injury. The Court (White JA, Simpson AJA and Harrison J) dismissed the appeal. (Per Simpson AJA, White JA and Harrison J agreeing): The primary judge's formulation of the risk of harm was unduly narrow and focussed purely and precisely on the circumstances in which Ms Powell suffered her injury: [35]. However, how a more general formulation would, or even might, have yielded a different result was not specified by counsel, and the generality of the formulation proffered by the appellant appeared to support Ms Powell's case: [35]. Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council (2015) 91 NSWLR 752; [2015] NSWCA 320, referred to. In determining when a risk of harm is "not insignificant", the standard "is not particularly high": [39]. The significance of the potential harm, the likelihood of it arising, and "obviousness" are relevant to the determination: [39]. It is a matter of common knowledge that lifting heavy weights can be the cause of back injury and that lifting them from the floor exacerbates the risk: [40]. It must have been obvious to New Dimensions that if members left weights littering the floor and there were no staff members insisting they be replaced, or replacing them themselves, that members such as Ms Powell would be forced to do so: [40]. It was not part of Ms Powell's exercise regime to lift 25 kilogram weights from floor level: [41]. The risk of harm was not insignificant: [42]. Sibraa v Brown [2012] NSWCA 328; Bruce v Apex Software Pty Ltd t/as Lark Ellen Aged Care [2018] NSWCA 330, referred to. The breach found by the primary judge was a failure to implement a system of inspection that would ensure that the weights area was kept tidy and that, therefore, members such as Ms Powell were not called upon to lift and store heavy weights left on the floor: [45]. The duty JFIT owed to Ms Powell did not require "constant supervision" of the various areas of the facility: [48]. For the most part, the problem of equipment being left out only arose during "tradies' hour", and there was no apparent reason why, with its knowledge of this practice, New Dimensions could not have arranged to have a staff member present, to insist on compliance with its own rules, or failing that, to put the equipment away: [49]. Carnemolla v Arcadia Funds Management Ltd [2020] NSWCA 308, distinguished on the facts. Factual causation was established. Ms Powell was found to have lifted weights, from the floor, in excess of what she ordinarily lifted. This was necessary for her to clear the area for her own exercise due to New Dimensions' failure to implement an appropriate system of enforcing its rules: [52]. (Additional observations per Harrison J at [55]-[58], regarding this case turning on its own facts).

[4]

Judgment

WHITE JA: I agree with Simpson AJA.
SIMPSON AJA: On 4 February 2016 the respondent, Ms Jacquie Powell, suffered serious spinal injury at the New Dimensions Health and Fitness Centre at Leonay ("New Dimensions"). At that time New Dimensions was operated by the appellant, JFIT Holdings Pty Ltd ("JFIT"). Ms Powell brought proceedings in the District Court claiming damages for the personal injury she suffered. She alleged that that injury was caused by the negligence of employees at New Dimensions, for which JFIT is vicariously liable.
The claim was governed by the provisions of the Civil Liability Act 2002 (NSW) ("the Act"), the presently relevant provisions of which are ss 5B, 5C and 5D. (In the interests of economy of space, I have omitted provisions of the Act that were raised in the proceedings but do not feature in the appeal). Sections 5B, 5C and 5D provide as follows: "5B (1) A person is not negligent in failing to take precautions against a risk of harm unless - (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things) - (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C In proceedings relating to liability for negligence - (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk. 5D (1) A determination that negligence caused particular harm comprises the following elements - (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent - (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party."
JFIT disputed Ms Powell's claim. It specifically denied negligence, and denied that Ms Powell's injuries were causally connected to any act or omission of its employees. It relied on ss 5F, 5G and 5H of the Act, by which a defendant is relieved (in specified circumstances) of any obligation to warn a (potential) plaintiff of an obvious risk (as defined in s 5F); it raised a defence, under s 5N of the Act, of waiver; it pleaded the partial defence of contributory negligence pursuant to ss 5R and 5S of the Act.
On 4 June 2020, after a five day hearing, Levy SC DCJ (the primary judge) found that employees of New Dimensions were negligent, that Ms Powell's injury was caused by that negligence, and that JFIT had failed to establish contributory negligence on the part of Ms Powell. He rejected the defence of waiver ([125]-[156]). The issues raised by ss 5F, 5G and 5H appear not to have been pursued. That, no doubt, was because Ms Powell did not plead, as a particular of negligence, failure to warn. The primary judge accordingly gave judgment in favour of Ms Powell, in the amount of $551,097.62: Powell v JFIT Holdings Pty Ltd t/as New Dimensions Health and Fitness Centre [2020] NSWDC 264.
JFIT now appeals against so much of the judgment as determined that it was liable for Ms Powell's injury. It does not challenge the quantum of damages awarded. Nor does it challenge the rejection of the partial defence of contributory negligence.

[5]

(i) the facility

The New Dimensions facility comprised two levels. Group fitness classes were conducted on the upstairs level. The downstairs area was a gymnasium room which contained weight equipment. Employees of New Dimensions also conducted personal training sessions on either level. It was a rule of membership of New Dimensions that members put equipment away after use. Signs to this effect were posted. One such sign proclaimed: "IT IS YOUR RESPONSIBILITY TO PUT AWAY YOUR EQUIPMENT AFTER YOU HAVE FINISHED TRAINING FAILING TO DO SO MAY RESULT IN YOUR MEMBERSHIP BEING SUSPENDED OR CANCELLED."
Although the majority of members of New Dimensions complied with the rule and put their equipment away, the rule was not enforced; there was no evidence that any membership had been suspended or cancelled for non-compliance. The expectation within the facility was that staff would put away equipment left out by members, although this was not generally done, and the equipment often remained where it had been left by members until put away by subsequent users of the area. It was commonplace on weekdays at New Dimensions, between 3 pm and 5 pm, for weights and discs to be left littered on the floor of the gymnasium area. This was a period known in the facility as "tradies' hour", so called because members of New Dimensions, who pursued trades, frequented the facility at that time in numbers; contrary to New Dimensions' rules, they persistently left equipment they had used on the floor. The condition of the weights area after the "tradies" had completed their workouts was described by one witness, who had worked at New Dimensions taking group fitness classes and as a personal trainer, as "disgusting". The equipment regularly left on the floor included large Olympic bars (15-20 kilograms), clips and weight plates weighing anything from 5-35 kilograms.
A checklist of daily tasks was issued for staff. It was divided into columns, one representing the tasks allocated to the staff member rostered from 7 am to 2 pm; the second to the staff member rostered from 2 pm to 8.30 pm. In each case duties, which were required to be initialled on completion, were listed. The daily tasks for 4 February 2016 showed that the staff member on duty from 7 am to 2 pm was "Sarah"; a variety of tasks were itemised and included: "Tidy gym floor & ladies zones & GF studios put ALL weights away hourly till off and press till off!"
The staff member identified as on duty for the 2 pm to 8.30 pm shift was Caitlin Abela. Her tasks included: "Tidy gym floor & ladies zone put ALL weights away turn off upstairs air conditioners …"
It is to be observed that while the staff member rostered for the morning-early afternoon shift was required to put "ALL" weights away hourly, the staff member rostered for the later afternoon-evening shift did not have the hourly imposition. The reason for the discrepancy was not explained by JFIT; the primary judge considered that the explanation was that the afternoon shift was busier, with more frequent use of the equipment by members.
In 2016, typically three or four staff were present during weekday afternoons. One was on reception, others were group fitness instructors or personal trainers. The receptionist's duties included supervising toilets and a crèche that was provided. At times, up to 30-40% of the time, the reception desk was unattended.

[10]

The primary judgment

The following is confined to findings relevant to the grounds of appeal.
For the purposes of s 5B(1) of the Act the primary judge rejected JFIT's proposal that the risk of harm should be identified as: " … the risk of suffering injury whilst lifting up a weight and putting it away." He found, instead (at [124]), that: "… the relevant risk of harm … also included the risk of incurring injury from lifting heavy weight plates from the floor in the course of undertaking housekeeping activity as distinct from undertaking an exercise regime, where those weight plates had been left strewn there in circumstances in which gymnasium staff had not taken steps to inspect the area, collect and appropriately store those weights."
He accepted that the scope of the duty of care owed by a defendant is "delimited" by the expectation that a potential plaintiff will exercise reasonable care for his or her own safety: Roads and Traffic Authority of NSW v Dederer (2007) 234 CLR 330; [2007] HCA 42 at [45]; Patrick Stevedores Operations (No 2) Pty Ltd v Hennessy; FBIS International Protective Services (Aust) Pty Ltd v Hennessy [2015] NSWCA 253 at [53]. He considered (at [158]) that Ms Powell had adequately discharged her duty in that respect, in recognising that the need to clear up the floor of the weights area in order to undertake her own exercise, because the floor was "in a cluttered mess that rendered it unusable, and where there is no dispute that in such a state it constituted a hazard."
His Honour considered that the daily tasks list provided to the staff was an indication that New Dimensions recognised the need to clear the floor of the weights area and stack weights appropriately on racks provided for that purpose, and that failure to do so could be hazardous to users of the area.
The primary judge then turned his attention to the question of breach of duty, and dealt, in turn, with each of the circumstances to which attention is directed by ss 5B and 5C of the Act.
He found (at [173]) that it was "beyond argument" that: "…the risk of a user of [New Dimensions] gymnasium sustaining an injury whilst lifting equipment to clear away awkwardly strewn weights left in an untidy state on the floor was foreseeable" (s 5B(1)(a)).
He rejected a submission by JFIT that the risk of injury was insignificant and found instead (at [176]) that the risk of back or other injury resulting from the need for a user of New Dimensions facility to move and clear away weights was "not insignificant" (s 5B(1)(b)).
He found (at [177]-[178]), based on Mr Armanasco's evidence, as well as "in accordance with a commonsense analysis", that a reasonable person in the position of New Dimensions would have taken the precaution of having staff undertake inspection of the weights area for tidiness and safety, and of ensuring that the floor of the weights area was kept tidy by appropriately storing equipment that was no longer being used, that is, off the floor, and placed on racks provided for that purpose (s 5B(1)(c)).
In reaching these conclusions the primary judge took into account the factors identified in s 5B(2). He found (at [181]) that there was a high probability of harm (s 5B(2)(a)) and that harm suffered was likely to be serious (s 5B(2)(b)); that the burden of taking precautions he had already identified was "negligible" (s 5B(2)(c)); and that no relevant considerations of social utility arose (s 5B(2)(d)).
He then addressed s 5C in a fashion that does not call for comment. In essence, he found that the three paragraphs of s 5C were not material to the s 5B exercise.
The primary judge then considered the issue of causation in the light of s 5D of the Act. He found that factual causation had been established because: "…but for the fact that [JFIT] had negligently permitted the heavy weight plate in question to remain on the floor of the weights area, in circumstances of hazardous mess and untidiness, [Ms Powell] would not have incurred the need to act to tidy up those weights in order to make room for her own exercise regime. Had reasonable care been taken by [JFIT], she would not have been injured [citing Strong v Woolworths Ltd (2012) 246 CLR 182; [2012] HCA 5 at [32].
The remainder of the judgment deals with issues that do not arise on appeal.

[13]

Ground two: significance of the risk

The argument advanced on behalf of JFIT in respect of ground two was: (i) that the duty owed by New Dimensions to Ms Powell was no more than a duty to take reasonable care in its operation of the facility; and (ii) that, in lifting the weights to put them away, Ms Powell was doing no more than she had regularly done in the past, and that was part of her "ordinary use of the gym".
Reference was made to the decision of this Court in Bruce v Apex Software Pty Ltd t/as Lark Ellen Aged Care [2018] NSWCA 330 at [27], in which Meagher JA (with whom Leeming and White JJA agreed) rejected a contention that a difference in height between the edge of a concrete slab and a row of slightly sunken brick pavers (on which Ms Bruce tripped and fell) constituted a "not insignificant" risk.
Reference was also made to the decision in Vincent v Woolworths Ltd [2016] NSWCA 40, in which this Court upheld a finding at first instance that an injury suffered by a "merchandiser", who was checking products on the shelves of a supermarket and who fell after she stepped backwards off a step into a trolley being pushed by a customer, had "a very low probability of occurrence" and was therefore not shown to have been "not insignificant".
Bruce and Vincent were illustrations, on their own facts, of risks of harm (that in fact materialised) that were held not to be "not insignificant". It is necessary, however, to have regard to statements of principle that have emerged in decisions in respect to when a risk of harm is "not insignificant". This Court has consistently held that the standard "is not particularly high": see Sibraa v Brown [2012] NSWCA 328 at [49] (per Campbell JA with whom Hoeben JA and Tobias AJA agreed), citing Shaw v Thomas [2010] NSWCA 169 at [44]; Rail Corporation of New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82 at [138]-[139] (per Beazley ACJ with whom McColl and Meagher JJA agreed). Both the significance of the potential injury, and the likelihood of it arising, are relevant to the determination of whether a risk is not insignificant: Sibraa at [50]; Bruce v Apex Software at [26], per Meagher JA, who added "obviousness" to the list of relevant factors, citing South Sydney Junior Rugby League Club Ltd v Gazis [2016] NSWCA 8 at [89].
It is a matter of common knowledge that lifting heavy weights can be the cause of back injury; indeed, it could be said to be notorious. It must have been obvious to New Dimensions that, if members left weights and discs littering the floor of an exercise area, and if there were no staff members to insist that they be replaced, or replace them themselves, members such as Ms Powell would be forced to do so. It is no answer to say, as was said on behalf of JFIT, that part of Ms Powell's exercise regime was lifting weights: the evidence was that she was not in the habit of lifting weights of 25 kilograms at least without a personal trainer, and that her exercise regime did not involve her lifting weights from the floor - something that, as is also common knowledge, exacerbates the risk of injury.
Ms Powell's evidence was that she took classes with trainers employed by New Dimensions. Although on this occasion she appears to have been intending to exercise without the assistance of a trainer, she intended to engage in exercises with which she was familiar, and work within her capacity. That did not include lifting 25 kilogram weights from floor level.
The primary judge was correct to proceed on the basis that the risk of harm was not insignificant.
I would reject ground two of the appeal.

[14]

Grounds three and four: breach of duty

It is convenient to adopt the course taken by the parties, and deal with these grounds together.
As noted above (at [26]), the breach of duty found by the primary judge was a failure to implement a system of inspection that would ensure that the weights area was kept tidy and that, therefore, members such as Ms Powell were not called upon to lift and store heavy weights left on the floor.
On behalf of JFIT it was submitted that this was inadequate because: (i) its obligation was not to ensure that the weights area was kept tidy at all times; and (ii) the finding by the primary judge "lacked any detail or precision and ignored much of the evidence"; and (iii) in order to "guarantee a situation where [Ms Powell] was to never [underlining in original] find herself in a position where she may need to put away weights that had been left by another person, the appellant would have needed a system of constant supervision of all area[s] of the gym" and that this was clearly not feasible or reasonable.
The authority cited for the first proposition was Carnemolla v Arcadia Funds Management Ltd [2020] NSWCA 308. I do not so read that decision. That was a decision in which a plaintiff had fallen on a floor of a shopping centre; she alleged that she fell because there was water on the floor. The allegation that water was on the floor was, as a matter of fact, rejected; this Court found, on the evidence (as was conceded) that the shopping centre's system of cleaning was adequate. The decision turned entirely on the facts of the case.
It may be accepted, however, that the duty JFIT owed to Ms Powell fell short of requiring "constant supervision", minute by minute, of the various areas of the facility. But the primary judge did not find that JFIT's duty went so far.
It is necessary to return to the evidence, which was that, for the most part, users of the New Dimensions' facility complied with their obligations to put their equipment away. It was only in a short window - weekday afternoons - "tradies' hour", between 3 pm and 5 pm - that the problem of equipment being left out arose. This was a period of about two hours, five days per week. There is no apparent reason why, with its knowledge of the practice of the "tradies", New Dimensions could not have arranged to have a staff member present, to insist on compliance with its own rules, or failing that, to put the equipment away. It is not to the point to say, as JFIT said, that putting the requirement on its own staff to put equipment away merely transferred the risk.
The finding by the primary judge did not lack precision; it was clearly to the effect that JFIT could have, and ought to have, implemented a system that would have dealt with a known problem.
I would reject grounds three and four of the appeal.

[15]

Ground five: causation

JFIT's argument with respect to factual causation was that any breach of its duty to Ms Powell was not causally connected to her injury. That, it was contended, was because the breach only caused her to do something (put away weights) that she did on every occasion that she attended the facility. For reasons already given (see [40]) that is factually wrong. She was found to have lifted weights, from the floor, in excess of what she ordinarily lifted. The primary judge was correct to find that the necessity for her to clear the area for her own exercise due to New Dimensions' failure to implement an appropriate system of enforcing its rules was the cause of her injury. I would reject ground five of the appeal.
Grounds six to eight having been abandoned, the consequence of these findings is that the appeal should be dismissed with costs.
The orders I propose are:
Appeal dismissed.
Appellant to pay the respondent's costs of the appeal.
HARRISON J: I agree with Simpson AJA and with the orders that she proposes.
Ms Powell succeeded before the primary judge in the District Court when his Honour found, among other things, that JFIT had failed to tidy the weights area following a particularly busy period referred to as tradies' hour. By reason of that failure, Ms Powell was required by herself to move weights from the gym floor in the area where she intended to work out before she could do so. As the judgment of Simpson AJA makes clear, the case at trial turned to a significant degree upon its own facts, including the fact that the roster for staff specifically required that at the relevant time, all weights were to be put away.
However, I would not want my concurrence with her Honour's analysis and proposed orders to be taken as an acceptance that in all cases, without more, there is a general duty of care owed by managers or proprietors of gymnasiums to gym users to ensure that loose weights or other equipment that has been discarded after use and not returned to racks built for that purpose must in fact always be returned by employed gym staff. It seems to me that, having regard to the manner in which gyms operate, it would be impractical, if not virtually impossible, with any certainty to articulate a universal standard by reference to which the scope and content of any such duty could be formulated. Limited only to weights, it is simply not possible in my experience to say which weights may have been discarded by someone who has completed his or her session, or are merely lying idle temporarily between sets. The fact that several people may be exercising together in cooperation or successively using the same equipment only serves further to make the enforcement of, or compliance with, the putative duty entirely unreasonable and impractical.
Additionally in this case, some use was sought to be made of the fact that the management of the gym had displayed signs reminding gym members, and inferentially any other gym patrons, that it was their obligation to return weights and equipment to racks or that a failure to do so could lead to membership cancellation or the equivalent. I would not want to be taken as agreeing with the suggestion, if it were maintained, that a sign to this effect could operate generally or universally as some form of admission by a gym that any dangers associated with loose weights or other gym equipment left on the floor from time to time are dangers for which management might be responsible if not removed. It is an obvious and unavoidable incident of exercising or working out in a gym that cooperation between and among patrons is required. Signs of the type described appear in my view to be no more and no less that an attempt by management in this case to remind patrons of accepted gym etiquette, that equipment which someone has finished using should be returned to the rack unless someone else is about to use it.

JFIT Holdings Pty Ltd t/as New Dimensions Health & Fitness v Powell

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Judgment (16 paragraphs)

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Cases Cited (15)

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