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/SG

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

DATE: 02/03/2006

CASE NO: 15683/2004

REPORTABLE ONLY FOR CORBETT AND HONEY

In the matter between:

KGOMOTSO ROSEMARY MASHABA PLAINTIFF

And

ROAD ACCIDENT FUND DEFENDANT

JUDGMENT

PRINSLOO, J

[1] The plaintiff is a 26 year old female Internal Communications Specialist. She had the unusual misfortune of being involved in so called “rear end” collisions on two consecutive days, namely 7 and 8 August 2003. On each occasion the vehicle she was driving was collided with from behind and she suffered what has become known as a “whiplash” injury, or soft tissue flexion extension injury to the neck.

[2] In terms of the provisions of the Road Accident Fund Act, Act 56 of 1996 (“the Act”), the plaintiff instituted two actions. In respect of the collision of 7 August 2003, she claimed an amount of R376 696.81, and in respect of the collision of 8 August 2003 she claimed an amount of R102 364.27.

[3] Subsequently, the actions became consolidated, and the defendant also conceded that the sole cause of both collisions was the negligence of the driver of the insured vehicle, so that I was only called upon to decide the amount or quantum of the claim.

[4] Before me, Mr Jordaan appeared for the plaintiff and Mr Lubbe for the defendant. Both counsel informed me that the parties had agreed to treat the claim as one, in the sense that no debate would take place as to what amount of damages, if any, was caused by which of the two collisions.

[5] During the course of the proceedings I was informed that the plaintiff’s claim had been narrowed down to the following:

Hospital and medical expenses R2 626.48 (an agreed amount)

In respect of future medical and related expenses it had been agreed that the defendant would furnish an undertaking in terms of section 17(4)(a) of the Act.

The estimated future loss of earnings

and/or loss of earning capacity R174 369.00

General damages R80 000.00

[6] The plaintiff, Kgomotso Rosemary Mashaba confirmed that she had been involved in the two rear end collisions on 7 and 8 August 2003.

[7] After the first collision ambulances and paramedics arrived and the latter insisted that she should go to hospital for an evaluation. She was still able to take details of the other driver and had what she described as a “blasting” headache and a painful neck. At the hospital she was examined and given a neck brace. She was then taken for X-rays and discharged within two hours. She was also given painkillers and anti-inflammatory medication. The next morning her neck was still sore, and her headache persisted. She had to go to work to attend to an important meeting but came home at midday to rest.

[8] During the evening of the following day (the day after the first collision) she drove to her boyfriend’s place and during the course of the journey another vehicle collided with the rear of the vehicle driven by her. She was wearing the neck brace at the time of the second collision. She was not sure whether the second collision aggravated her condition. By all accounts, the second collision was not as violent as the first one. That evening there was still a headache and a stiff neck. She could not turn her neck without turning the whole body.

[9] A few days later the plaintiff went to see an attorney for advice and was sent to see a doctor for an evaluation with regard to the second collision. She went back to the Little Company of Mary Hospital for more X-rays and more medication. This was on 15 August 2003. It was the last time that the plaintiff saw a doctor as a result of the injuries sustained in these two collisions.

[10] From the evidence as a whole it appeared that the plaintiff was uncertain whether the second collision had an impact on her condition. She wore the neck brace for about two weeks.

[11] The only other treatment the plaintiff received, apart from the medication, was a visit to a physiotherapist. There was only one visit. She said that she did not go for more treatment at the physiotherapist because of financial constraints. I must say that I take this portion of the evidence with a pinch of salt, given the fact that the plaintiff was earning a substantial salary at the time.

[12] For the week after the collisions the plaintiff only worked for half a day, each day, and experienced lower back pain, a stiff neck and headaches. After a month she was still on painkillers but then started reducing the intake of medication because she was feeling better. After about six months she stopped taking medication altogether.

[13] At work, the plaintiff spent a great deal of time in front of the computer. Whenever she had a headache she would get up and take a break which gave her some relief.

[14] After the collisions the plaintiff also found that she had to use a cushion in her car when driving long distances. This was not necessary before she got injured.

[15] I find it important to remark that already in her evidence in chief, the plaintiff, quite properly, conceded that prior to the collisions she also experienced neck tension when spending long hours before the collision. She felt that after the collisions the pain became more severe. The frequency depends on her hours spent. Presently she spends 60 to 70% of her day in front of the computer. She also develops eyestrain which leads to headaches. The same happened before the collision.

[16] Presently the plaintiff works for Nestle South Africa as a Communication Specialist with an annual package of some R293 000.00 and a gross monthly salary of some R20 600.00. About 30 or 40% of her time is spent travelling and she also commutes to and from the office everyday spending about 2 to 3 hours in her car on a daily basis.

[17] In cross-examination she again conceded that prior to the collisions she experienced headaches when spending long hours before the computer. The neck pain seems to be different now, starting in the occipital area of the head and spreading down to the neck. However, the neck ache has cleared up to a large extent. She now only has the occasional headache. The same applied before the collision. Presently there are no neck symptoms. She testified that “the neck is fine” and “the lower back is fine”.

[18] The plaintiff was then cross-examined at some length about her career record as documented in a report by Ms Tania Vermaak, the Industrial Psychologist called as a witness by the defendant.

[19] In very broad terms, it can be said that the plaintiff was a receptionist from 2000 to approximately August 2003, earning some R5 800.00 per month. She was then promoted, at about the time when the collisions occurred, to become a Research Administrator at R10 800.00 per month. In January 2004 (after the collisions) she became a Communication Officer at R12 000.00 per month and in March 2005 she joined Dimension Data Holdings as an Internal Communications Manager at R19 000.00 per month. She gave clear evidence that none of these career changes were caused by the sequelae of the injuries sustained in the collision.

[20] As far as the last mentioned position at Dimension Data Holdings is concerned, she gave extensive evidence as to the reasons for her deciding to resign, and made it quite clear that she was unhappy with the work environment and that her decision was not inspired by the sequelae of the injuries sustained.

[21] In November 2005 she was employed by Nestle South Africa, her present employer, at approximately R23 000.00 per month gross. I add that her own evidence suggests that she was earning about R20 000.00 per month gross but the documentation to which I have referred mentions a figure of R23 129.00 per month and an annual package of some R293 000.00.

[22] Ms Vermaak, who later gave evidence, consulted with one Patricia Sidley about the work performance of the plaintiff at the Council for Medical Schemes where she worked prior to the collision and subsequent to the collision. Ms Sidley spoke about the plaintiff in glowing terms and the Performance Dimension Ratings were very high. Even after the accident had occurred there was only a slight decrease in the Performance Dimension Rating and Ms Sidley summarised the situation as follows:

“Comments made by the referee included:

Kgomotso’s work speed, quality of work and energy levels decreased slightly for a short period after the accident.

Her performance levels in total were not significantly affected by the accident, the only observation were (sic) the fact that she could not sit for prolonged periods.

She remains the reliable employee whom always arrived at work on time”

[23] Each career change was acknowledged by the plaintiff to have been a promotion.

[24] The plaintiff agreed with the following remark made by Ms Vermaak in her report:

“It is concluded that the claimant will probably still be able to achieve the same work performance levels as might have been expected before the accident.”

[25] I find it necessary to make the observation, to the credit of the plaintiff, that she never made an attempt to exaggerate the symptoms or sequelae following upon the injuries.

[26] The plaintiff was also cross-examined about a remark made by the Industrial Psychologist, Ms Sonet Vos, called as a witness by the plaintiff, to the effect that the plaintiff, prior to the collisions, never failed any of her modules or subjects at University. She obtained a B Com Communications Degree in 1999. Later it turned out that the information that the plaintiff had not failed anything pre accident was wrong. The plaintiff denied having conveyed this incorrect information to Ms Vos. The plaintiff also disputed a conclusion by Ms Vos that the plaintiff’s progress in the labour market had been delayed by one year because of the sequelae of the injuries sustained.

[27] Dr Donald Anthony Birrell, Orthopaedic Surgeon, was the next witness.

[28] Dr Birrell examined the plaintiff on 9 March 2004 and again on 18 August 2005 and prepared two medico legal reports. He dealt with the mechanics of the injuries resulting from this type of collision and confirmed that the symptoms experienced by the plaintiff are compatible with collisions such as the ones that occurred. He also emphasised the fact that the plaintiff was very truthful towards him and not in the habit of exaggerating her symptoms. He felt that the plaintiff could be more comfortable in her workplace by improving her posture.

[29] Dr Birrell described the injuries sustained as mild, but because of the persisting symptoms he felt that the plaintiff is no longer in the same condition that she was prior to the collisions.

[30] Dr Birrell testified that there was a possibility that the symptoms could worsen in future and he even allowed a 5% chance of the plaintiff requiring cervical surgery sometime in the future. He also felt that provision must be made for future conservative medical treatment.

[31] As to the plaintiff’s loss of earning capacity or work capacity he initially set this at 5% and in his supplementary report he suggested that the loss of work capacity suffered by the plaintiff as a result of the injuries was probably in the order of 3% or 4% and he emphasised the importance for her to receive proper occupational therapy advice.

[32] In cross-examination the witness said that the estimated 3 to 4% loss of earning capacity was based on the assumption that the plaintiff would get proper treatment and would also maintain a good posture. Despite persistent cross-examination, Dr Birrell was not prepared to reconsider his assessment of a small percentage of loss of work capacity. He also testified that the percentages were based on figures advanced by the International Society for the Study of the Cervical Spine. This society generally fixes the loss of earning capacity for a soft tissue injury with remaining symptoms at 5%. Moreover, Dr Birrell based his assessment on his experience in this field over the past thirty years. Dr Birrell is a strong and impressive witness.

[33] Ms Sonet Vos, Industrial Psychologist, was the next witness. She assessed the plaintiff in September 2005.

[34] I have already referred to the portion of the evidence of Ms Vos dealing with the wrong information that the plaintiff had not failed any subjects prior to the accident. It is not clear how this misunderstanding arose. I will give the plaintiff the benefit of the doubt and assume that the false information was not given by her.

[35] The witness also pointed out that according to information given by Mr Truter, Clincal Psychologist, the plaintiff had experienced emotional problems prior to the collision. In the context of the trial, not much turned on this. During the cross-examination of this witness I was also informed by both counsel that it is common cause between the parties that a measure of depression experienced by the plaintiff was not caused by the sequelae of the injuries sustained in these collisions.

[36] This witness persisted with her evidence that, in her opinion, the plaintiff will have some disadvantage, when competing with rivals in the marketplace, because of the sequelae of the injuries.

[37] The witness conceded that she was no longer standing by her earlier theory that the plaintiff’s career progress had been delayed by one year because of the injuries sustained. The witness expressed some concern about the decision of the plaintiff to walk out of the job at Dimension Data, and felt that this rash decision may have been the result of the inability to handle pressure because of the sequelae of the injuries. Against the background of the plaintiff’s own evidence, to which I have referred, I find this theory of Ms Vos totally unconvincing.

[38] The witness also testified about the pre-trauma and post-trauma career path of the plaintiff, and reference was made to the well known Paterson grading system. I will revert to this when briefly referring to the joint minute prepared by this witness and her opposite number for the defendant, Ms Vermaak.

[39] Tania Vermaak was the Industrial Psychologist who testified on behalf of the defendant. I have already referred to her evidence in brief terms.

[40] I have already referred to the research done by this witness as to the pre accident and post accident work performance ratings and her interviews with Ms Patricia Sidley.

[41] Ms Vermaak felt that the progress made through various career changes after the accident illustrate some form of a promotion with every career move and she felt that the plaintiff progressed much quicker from the post of a Receptionist to Middle Management then most other people would have done.

[42] I have already referred to the conclusion of this witness that the claimant will probably still be able to achieve the same work performance levels as might have been expected before the accident. I have mentioned that the plaintiff, herself, agreed with this conclusion.

[43] Nevertheless, I am of the view that it is important, from the point of the plaintiff, and in support of the plaintiff’s claim for loss of earning capacity, to quote the following further remark made by this witness in her report:

“Considering the expected maximum work capacity loss of 5%, the plaintiff will probably need to exert more effort, drive, motivation and persistence in order to sustain pre accident work performance levels.”

This was confirmed by the witness during her evidence. The 5% was based on the initial assessment of Dr Birrell.

[44] In the joint minute prepared by Ms Vermaak and Ms Vos, both these experts agreed that pre accident the plaintiff could probably have peaked at a Paterson D3, a Middle Management position. They agreed that the present salary earned by the plaintiff already puts her in the D2 Paterson category. I did not get the impression that any of these experts felt strongly that the career path, post accident, has been seriously compromised from the point of view of which Paterson grading the plaintiff may or may not have reached ultimately.

[45] What is important, in my view, is the following extract of the opinion of Ms Vermaak, as expressed in a joint minute:

“Tania Vermaak is of the opinion that a small post accident contingency must be applied to compensate for the expected 5% loss of work capacity, implying greater levels of motivation and endurance required to sustain work output and performance.”

[46] In cross-examination this witness, quite properly, conceded that the plaintiff still shows symptoms of the sequelae of the injuries sustained. She conceded the possibility that the plaintiff’s productivity levels have been impaired. She also made the significant concession that the plaintiff will now have to put in more effort to achieve the same levels of performance as had been the case before the accident. She may have to work longer hours, and perhaps put in more effort in order to adequately compete with her rivals in the marketplace, as would have been the case but for the injuries.

[47] This concludes a brief summary of the evidence presented at the trial.

[48] As is often the case, the main area of dispute is whether or not the plaintiff suffered a loss of earning capacity (with resultant loss of earnings in the future, or the potential of such loss) and, if so, what monetary value ought to be attached to this loss.

[49] It is by now well known that a court having to make such a determination is, generally speaking, faced with two options: a so called lump sum award, or an award based on mathematical and actuarial calculations. These options are graphically illustrated in the well known judgment of Southern Insurance Association v Bailey NO 1984 1 SA 98 (AD) 113H:

“It has open to it two possible approaches. One is for the judge to make a round estimate of an amount which seems to him to be fair and reasonable. That is entirely a matter of guess work, a blind plunge into the unknown.

The other is to try to make an assessment, by way of mathematical calculations, on the basis of assumptions resting on the evidence. The validity of this approach depends of course upon the soundness of the assumptions, and these may vary from the strongly probable to the speculative. It is manifest that either approach involves guess work to a greater or lesser extent.”

And, more importantly, the learned judge of appeal says the following at 114C:

“In a case where the court has before it material on which an actuarial calculation can usefully be made, I do not think that the first approach offers any advantage over the second. On the contrary, while the result of an actuarial computation may be no more than an ‘informed guess’ it has the advantage of an attempt to ascertain the value of what was lost on a logical basis; whereas the trial Judge’s ‘gut feeling’ (to use the words of appellant’s counsel) as to what is fair and reasonable is nothing more than a blind guess.”

Even in the Bailey case, where the injured child was still very young, the court of appeal held that there was nothing wrong in principle to make an assessment on the basis of actuarial calculations.

[50] Against this background, it must, of course, be borne in mind that the present plaintiff has already travelled some distance along her career path so that the actuary had something to work with. The plaintiff chose to instruct the actuary, Mr Jacobson, to make calculations based on Dr Birrell’s estimate of a loss of work capacity of 3 to 4%. It is understandable that the estimated loss over the remainder of the projected career path would be the same in both the pre- and post-accident scenarios except that the contingency deduction in the scenario having regard to the accident was higher than in the scenario but for the accident.

As far as the other actuarial assumptions are concerned, Mr Jacobson simply assumed the present annual package of R293 000.00 which he increased with inflation at 7.32% per annum at a net discount rate of 2.5% over the next 39 years until retirement aged at 65. He adopted the other usual assumptions as to mortality and income tax. There was no debate before me as to the correctness, or lack thereof, of the assumptions adopted by the actuary.

[51] On this basis the results of Mr Jacobson’s calculations are as follows:

3% loss of earning capacity R149 459.00

4% loss of earning capacity R199 279.00

The amount of R174 369.00 which the plaintiff claims is the average between the two figures.

[52] During the course of his argument, Mr Jordaan urged me to adopt the “arithmetical” or “actuarial calculation” approach, rather than the “lump sum” approach. In this regard Mr Jordaan referred me to the very comprehensive judgment of Jacobs v Padongelukkefonds Corbett and Honey: The Quantum of Damages in Bodily Injury Cases, Vol V, C3 131. In that case the injured plaintiff also suffered a whiplash injury of the neck causing a 5% loss of work capacity. The learned judge adopted the arithmetical approach where the actuary also applied a 20% contingency factor to the pre morbid earnings and a 25% contingency factor to the post morbid earnings. In that case the injured married woman was 25 years of age (almost the same age as the present plaintiff) although, on a general reading of the judgment, it seems that the symptoms she experienced post-accident were substantially worse than those applying to the present plaintiff.

[53] Arithmetically, it makes no difference whether the contingency exercise involves higher or lower contingencies, as long as the difference remains the same. For example, in the present case, if a pre accident contingency of 20% is applied and a post accident contingency of 23%, the result remains the same, ie R149 459.00.

[54] By way of comparison, a classic case where the so called “lump sum approach” was adopted is that of Audi v Rondalia Assurance Corporation of South Africa Ltd Corbett and Buchanan: The Quantum of Damages in Bodily Injury Cases Vol II, page 479 where a 25 year old factory hand suffered a left hip fracture and faced the prospect of future hip-replacement operations. In 1974, the learned judge awarded the plaintiff R5 000.00 “for the loss of income which he is likely to suffer in the future as a result of his injuries”. The learned judge also made the following remarks:

“It seems to me that this is not a case in which the plaintiff has been able to prove actual future loss, which can be quantified on an actuarial basis ... It seems likely that he can continue in his present employment until retirement age, except for periods of about two weeks per annum when he will be off work due to pain, and the periods when he will be away from work for the hip operations and the removal of the internal fixation. He may well lose employment if he has to be away from work from time to time for the two hip replacement operations, but this seems unlikely if he has been a good and faithful workman up to then. However, his increasing disability and consequent lack of mobility may well endanger his prospects of keeping his job as well as impairing his chances of advancement and, as already noted, will limit his ability to improve his position by finding other employment.”

[55] Of course, it seems that, generally speaking, Mr Audi had slightly greater problems than the present plaintiff. On the other hand, Dr Birrell did testify that the symptoms of the present plaintiff may take a turn for the worse and he even allowed a contingency for future cervical surgery.

If the 1974 award of R5 000.00 which Mr Audi received as a lump sum is updated to 2005 monetary values by employing the factors suggested by Corbett and Honey op cit Vol V, one arrives, interestingly enough, at a result of some R130 000.00.

[56] There may well be cases where, for example, a pure actuarial calculation, based on contingency difference, for a very high income plaintiff suffering minimal discomfort in the workplace, can yield a result which appears to be too high and unfair from the point of view of the defendant. In such a case a more conservative lump sum award may be indicated.

However, in the present case there is clear evidence, on the defendant’s own version, that the plaintiff will be at a disadvantage, albeit a slight one, in the marketplace, and will have to put in more effort and perhaps work longer hours than before in order to achieve the same results. Moreover, Dr Birrel gave clear and undisputed evidence to the effect that the symptoms suffered by the plaintiff could take a turn for the worse and, in my opinion, he motivated his estimate of the percentage loss of work capacity in a compelling fashion. I am also mindful of the fact that the actuarial calculation may be on the conservative side, because it only takes into account inflationary increases over the next thirty nine years and makes no provision for further career changes which may yield greater increases. In all these circumstances I am of the view that, where sufficient career and income details are available, the actuarial calculation approach may be more appropriate in the present case. Where the present symptoms are not of a marked nature, I feel that the lower (3% discrepancy) option may be the more realistic one.

In the result, the award that I make in respect of loss of earning capacity or future loss of income is an amount of R149 459.00.

[57] I must now turn to the claim for general damages. Recently, the Supreme Court of Appeal considered both the advisability of a court taking previous awards in other courts into account as a guideline and the perceived recent tendency to increase rewards for general damages. In De Jongh v Du Pisanie NO 2005 5 SA 457 (SCA) 477B-F the following was said:

“By die uitoefening van die hof se diskresie is vergelyking met toekennings in vorige sake ‘n nuttige hulpmiddel omdat dit darem vir die hof die breë parameters oftewel ‘n patroon aandui waarbinne sy toekenning tuisgebring moet word. Dit is ook ‘n nodige riglyn omdat konsekwentheid in toekennings ‘n inherente vereiste van billikheid is. Nietemin bly dit steeds ‘n riglyn. Dit vervang nie die hof se diskresie met ‘n letterknegtige gebondenheid aan die aangepaste waarde van vorige toekennings nie.

Die stygende tendens van toekennings in die onlangse verlede is, soos ek alreeds gesê het, duidelik waarneembaar. Die effek daarvan is egter weereens nie met matematiese presiesheid bepaalbaar nie. Dit is nie seker presies wanneer die tendens begin het en wanneer dit sal eindig nie. Dit het dus moontlik reeds tot ‘n einde gekom. ‘n Bepaalde toekenning uit die verlede waarna verwys word kon dus reeds met inagneming van die tendens geskied het. As die vorige beslissing wat as maatstaf dien reeds met inagneming van die stygende tendens gemaak is, kan dit nouliks geregverdig word om op grond van dieselfde oorwegings sonder enige bykomstige rede, ‘n verdere styging toe te laat. Daarbenewens verg die tendens klaarblyklik nie die vermenigvuldiging van vroëere toekennings met ‘n vooraf bepaalde of bepaalbare faktor nie. Op die ou end is die tendens maar net nog ‘n oorweging wat die hof geregverdig is om in ag te neem wanneer hy, by die uitoefening van sy diskressie, na vorige toekennings, veral in ouer sake, as riglyn verwys.”

These remarks were made in full consideration of the case of Road Accident Fund v Murunga 2003 5 SA 164 (SCA) where the perceived tendency to increase awards also came up for consideration.

[58] As to previous comparable awards, I considered some of the entries to be found in Corbett and Honey op cit in volumes IV and V. At a glance, the cases all appear to be slightly more serious than those of the present plaintiff. A possible exception is that made in the Southgate case, infra.

I find it useful to tabulate five of these awards, by referring to the name of the case, the reference, the award made, the year in which it was made and the updated 2006 figure as suggested by the Quantum Yearbook of Robert J Koch.

Southgate v Road Accident Fund vol V C3-71 R20 000.00 in 2001 updated to R26 000.00.

Saber v President Insurance Co Ltd vol IV C3-1 R13 000.00 in 1990 updated to R46 000.00.

Jeffery v President Insurance Co Ltd vol IV C3-19 R10 000.00 in 1987 updated to R52 000.00

Zuanni v National Employers’ General Insurance Co Ltd vol IV C3-26 R8 000.00 in 1987 updated to R42 000.00 in 2006.

Chinappa v Sentra Sure Ltd vol IV C3-86 R28 000.00 in 1996 updated to R54 000.00 in 2006.

[59] Against this background, I am of the view that an award of R40 000.00 for general damages would be appropriate in the present case.

[60] In the result, the monetary award which I intend to make comes to R192 085.48 which is computed as follows:

Medical and hospital expenses R2 626.48

Estimated future loss of earnings or

loss of earning capacity R149459.00

General damages R40 000.00

Total R192 085.48

[61] I make the following order:

Judgment is granted in favour of the plaintiff against the defendant for:

1. Payment of the sum of R192 085.48;

2. Interest thereon at a rate of 15.5% per annum calculated from fourteen days after judgment to date of payment;

3. The defendant is ordered to furnish the plaintiff with an undertaking in terms of section 17(4)(a) of Act 56 of 1996 in respect of the plaintiff’s future hospital, medical and related expenses arising from the injuries sustained in the collisions which occurred on 7 August 2003 and 8 August 2003.

4. The defendant is ordered to pay the plaintiff’s costs which will include the following:

4.1 The costs of obtaining the reports of the following experts:

4.1.1 Mr Kobus Truter;

4.1.2 Ms T Neumann;

4.1.3 Mr Gerard Jacobson;

4.1.4 Dr D A Birrell;

4.1.5 Ms Sonet Vos.

4.2 Costs of counsel.

4.3 The reasonable qualifying and preparation fees of Dr D A Birrel and Ms Sonet Vos as allowed by the Taxing Master or agreed.

W R C PRINSLOO

JUDGE OF THE HIGH COURT

15683/2004

HEARD ON: 27 January, 31 January & 1 February 2006

FOR THE PLAINTIFF: Adv C G Jordaan

INSTRUCTED BY: Messers Adams & Adams

FOR THE DEFENDANT: Adv A Lubbe

INSTRUCTED BY: Messrs Mothle Jooma Sabdia Inc

DATE OF JUDGMENT: 02 March 2006

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