Lai Jianxing v. Sakoma (HK) Ltd and Another
Read the full judgment text of CACV 220/2011 on BabelCite. This Court of Appeal judgment was delivered on 19 October 2012.
1. I have had the advantage of reading Kwan JA’s judgment in draft, I am in full agreement and have nothing to add.
Cited by 7 cases · Cites 11 cases
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CACV 220/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 220 OF 2011 (ON APPEAL FROM HCPI NO 757 OF 2009) ____________ BETWEEN
____________ Before: Hon Tang VP, Yuen JA and Kwan JA in Court Date of Hearing: 12 July 2012 Date of Judgment: 19 October 2012 ______________ JUDGMENT ______________ Hon Tang VP: 1.I have had the advantage of reading Kwan JA’s judgment in draft, I am in full agreement and have nothing to add. Hon Yuen JA: 2.I agree with the judgment of Kwan JA. Hon Kwan JA: 3.This is an appeal and cross-appeal in respect of an assessment of damages for personal injuries by Mr Recorder A Ho, SC on 9 September 2011. There is no appeal regarding the award for pain and suffering and loss of amenities of $250,000. The heads of damages that are in dispute relate to pre-trial loss of earnings, future loss of earnings, loss of earning capacity, loss of congenial employment and care and attention of the plaintiff’s wife. Background and relevant findings 4.The background matters and relevant findings made by the judge may first be stated as follows. 5.The plaintiff, Lai Jianxing, is a Mainland resident. He had been working as a seaman for 22 years before his accident in Hong Kong waters on 8 May 2008. At that time, he was the deputy captain of Zhonghang 903, a barge commuting between the ports of Guangdong, Macau and Hong Kong in the transportation of containers and cargoes. As the deputy captain, his main duties were to assist the captain and be in charge of the steering and general administration of the barge. He was often required to assist other crew members in various duties when they were pressed for time to complete the loading or unloading of cargoes. This would involve the plaintiff teaming up with 2 crew members to hook up the slings of the crane onto the anchors of the containers. He would also help crew members in handling and moving cargoes, tools and equipment on the barge. 6.On the day of the accident, he was engaged in hooking up a container to the slings of a crane when he fell off from the container and landed at the bottom of the hold. At the trial, he did not pursue his claim against the 1st defendant and the 2nd and 3rd defendants admitted liability. 7.The plaintiff was 45 years old at the time of the accident and nearly 49 at the time of trial. He suffered bruises to the right posterior upper arm and anterior wedge collapse of L1 in the spine. There was no neurological deficit. He was moved from Hong Kong to a hospital in Zhongshan City and was hospitalised until 26 June 2008. During his hospitalisation, he wore a corset and was confined to bed rest. According to the discharge record, he had a compressed fracture at L1 and the compression was about 1/3. 8.At the time of the joint medical examination in April 2010, nearly 2 years after the accident, he still had low back pain and dull ache with change of weather, after exertion at work or other activities, big sneezing or when turning in bed. He also experienced mild dizziness. His wedge fracture at L1 had healed with 47% compression ratio. The intermittent back pain would persist although the severity of the pain would reduce with time. 9.In January 2009, the doctor suggested to the plaintiff he could try to return to work but should only undertake less strenuous duties. He was told by his employer that his previous position on the barge had been filled and it was only in May 2009 that his employer found him a position as a watchman guarding scrap vessels on land with a lower salary than what he would have earned as a seaman. He took up the job and kept requesting his employer to deploy him to sea-going duties, as he needed a good income to support his family. In August 2009, the vacancy of chief mate arose on a tugboat, Xianxing 703, due to the retirement of that vessel’s captain and the consequent promotions of its deputy captain and the chief mate. The plaintiff accepted his employer’s offer to work as the chief mate on the tug boat and has continued to occupy that position at the time of the trial. 10.The judge accepted the plaintiff’s evidence that his pre-accident job as the deputy captain on the barge would require him to perform tasks from time to time that involved heavy physical exertion, such as rigging, pulling and manoeuvring metal slings, handling cargoes, tools and equipment. On the undisputed medical evidence, he would be unsuitable for such work especially taking account of the risk of unexpected turbulence at sea, as he might have intermittent back pain on heavy exertion. The judge concluded that the plaintiff is unlikely to be able to resume the full range of the pre-accident duties of the deputy captain on the barge. 11.The judge further found that the plaintiff’s posting as the chief mate on the tug boat was his employer’s response to his desire to return to a sea-going position, having regard to the limitations of his ability to perform the physical duties on a boat and their inherent hazards. He accepted the plaintiff’s evidence that in his present job, he was mainly involved in the performance of light duties such as dealing with paper work for the business operation of the tug boat and matters relating to customs and duties. And although there had been occasions when the plaintiff exerted himself on the tug boat by moving ropes and pulling cables, the judge accepted that he had ceased doing such work because of the pain he experienced afterwards. 12.The judge had regard to the memorandum issued by the employer dated 20 July 2010, in which the employer stated that it had arranged for him to undertake duties that would not require physical exertion and for the time being posted him to work as the chief mate on the tug boat, that it would assess his situation regularly, and that it would not rule out the possibility of transferring him to work as a watchman at a lower salary having regard to his condition, the overall efficiency and the safety of the vessel’s operation. The judge found the employer’s concern of the limitation of the plaintiff’s ability to perform heavy manual labour on a boat clearly understandable. 13.The judge also considered another letter from the employer dated 10 February 2010. The employer stated there that the plaintiff was transferred to work as the deputy captain of the barge Zhonghang 903 in 2006, with the objective of promoting him to be captain of the barge in a few years’ time, after he had become familiar with its operation. The employer wrote that if it had not been for the accident, the plaintiff should have been promoted to be the captain of the barge in a few years’ time and because of the accident, he was transferred from his position on the barge and would not be considered for any promotion in view of his present condition. 14.The judge was satisfied on the evidence there was a good prospect of the plaintiff’s promotion to the position of the captain of the barge had he not been injured in the accident. There was, however, no clear indication from the employer as to when such promotion would likely take place. The judge was also satisfied that the chance is now lost consequent upon the plaintiff’s injuries. 15.I turn to the various heads of damages that are the subject of the appeal and cross appeal. Pre-trial loss of earnings 16.The pre-trial period was 38 months. The actual earnings made by the plaintiff for this period amounted to RMB122,121.08. If the plaintiff had continued in his position of deputy captain on the barge during this period, he would have earned RMB 5,331.16 x 38 months = RMB 202,584.08. The judge accordingly awarded the shortfall (RMB 202,584.08 - RMB122,121.08) of RMB 80,463 as damages for pre-trial loss of earnings. 17.Mr Szeto argued for the plaintiff on appeal that in respect of 7 months in the pre-trial period, namely from January 2011 to July 2011, the plaintiff had suffered additional loss in that he had lost the opportunity of being promoted to be the captain of the barge. Hence, the pre-trial loss during those 7 months should be calculated with reference to the higher earnings of the captain at RMB 6,367 a month. 18.The judge had considered this submission of Mr Szeto. He held that a distinction should be drawn between assessment of pre-trial loss, which is in the past, and post-trial or future loss. Past loss has to be established as a matter of probability, but the calculation of future loss can take possibilities into account (Charlesworth & Percy on Negligence, 12th ed, para 5-113). This distinction in approach must also apply to loss of earnings on account of loss of promotional prospect. As pre-trial loss is in the nature of an accrued loss, it is incumbent on the claimant to prove on a balance of probabilities both the elements that such promotion would have occurred and the timing of the promotion. It is pertinent to note that pre-trial loss of earnings, being claimed as part of the special damages, must be pleaded with particularity (Charlesworth & Percy, op cit, para 5-112). On this basis, to justify the claim for the additional loss of earnings, the judge held that the plaintiff would need to show it was more likely than not he would be promoted at the latest by January 2011, see the similar approach adopted by Clough J in Balasing Gurung v Ng Lay, HCA 4587/1985, 5 August 1986, page 11. 19.I have set out the evidence and relevant findings earlier. To recap, the judge found that there was no clear indication from the employer as to when the promotion would likely take place. He held that the evidence falls short of establishing that the position of the captain on the barge would more likely than not become available by 2011, even if the plaintiff was ready for that post. So the plaintiff failed to satisfy the judge that by January 2011, he would be promoted to the position as the captain of the barge on a balance of probabilities. 20.Mr Szeto argued on appeal that the judge was wrong in law to take timing into account. He contended that it is sufficient to establish there was a substantial chance the plaintiff would be promoted by January 2011 and the judge should have found there was such a substantial chance because the judge had held there was a good prospect of promotion had it not been for the accident. He submitted that the judge mistakenly took into consideration the irrelevant question of when would a future event happen when assessing damages for loss of earnings. He reasoned that there should be no difference in approaching the assessment of damages here whether it was pre-trial or post-trial loss, as the court was presented with a hypothetical case whether the plaintiff would have been promoted but for the accident. The lost chance here is not a past event because it is a hypothetical situation. So the court should only be concerned with the question whether there was a lost chance, and if so whether the chance was substantial or speculative. 21.In support of his propositions, he cited Allied Maples Group Ltd v Simmons & Simmons [1995] 4 All ER 907 at 914h to 919c; Davies v Taylor [1974] AC 207 at 213B; Anderson v Davies [1993] PIQR Q87 at Q98; Sykes v Midland Bank Executor and Trustee Co Ltd [1971] 1 QB 113 at 130B to C; Doyle v Wallace [1998] PIQR Q146; and Liu Chun Kow Joe v Lee Sau Wing, CACV 304/2007, 16 April 2008. He pointed out that Balasing Gurung v Ng Lay which the judge referred to was decided before many of the cases he cited on damages for the loss of a chance. It is sufficient to quote just from the first of these cases cited by counsel to get the flavour of his argument:
22.I do not agree with Mr Szeto that in the assessment of a lost chance, the likely timing of the promotion prospect is irrelevant whether in relation to pre-trial or post-trial loss, just because one is looking at a hypothetical situation. To the contrary, the likely timing of the promotion prospect must be relevant to both the pre-trial and post-trial losses. Where the court finds a good or real prospect of promotion, there must surely be a difference in the awards between a situation where the promotion would likely take place in the distant future and a case where the promotion would likely take place in the near future. To adopt the words of Stuart-Smith LJ in the dicta above, the range in the evaluation of a chance may lie somewhere between something that just qualifies as real or substantial on the one hand and near certainty on the other. 23.Where Mr Szeto’s argument breaks down is the sweeping statement that there should be no difference in approaching pre-trial and post-trial losses as the court is concerned with a hypothetical situation which would not materialise in reality. Not every matter in the assessment of a lost chance is hypothetical. In the case of a promotion, a ready example is the vacancy in the higher position at a given time. Where such a matter is not hypothetical, and one is looking at the past to ascertain if it had occurred, it would be incumbent on the claimant to prove this matter on the balance of probabilities. So if during a specific period in the past, it is not established that any vacancy in the higher position had arisen, the plaintiff could not have proved that there is a substantial chance of promotion which he had lost for which he ought to be compensated. That accounts for the difference in approach between pre-trial and post-trial situations in that in the former, the court is looking at events within a specific period in the past which had occurred. 24.On the evidence of this case, that is the situation here. The plaintiff’s claim for additional loss was based solely on the loss of promotion prospect to the position of the captain of the barge and no other position. As mentioned earlier, the judge had found that the evidence falls short of establishing that the position of the captain on the barge would more likely than not become available by 2011, even if the plaintiff was ready for that post. That finding of fact cannot be faulted. Mr Szeto referred to vacancies occurring in the position of the captain in the plaintiff’s testimony, but it is clear that the plaintiff was referring to the position of the captain on the tug boat and this is not relevant to his case as pleaded. As we have put it to Mr Szeto in argument, the plaintiff could easily have adduced evidence from his employer or the captain of the barge, whom he knew, if there was any change in the captain’s position between the day of the accident and the time of trial. No such evidence was given. 25.The judge’s statement that the claimant must prove on “a balance of probabilities” both the elements that promotion would have occurred and the timing of the promotion might have given rise to some misunderstanding that he was not applying the law correctly in assessing a lost chance for the pre-trial loss. The judge was fully cognisant of the cases on the evaluation of a lost chance and had cited them in that part of his judgment dealing with post-trial loss of earnings. As I have attempted to analyse above, I do not think the judge was in error in his approach overall. 26.For the above reasons, I reject the plaintiff’s contention the award under this head should be increased to take into account his lost chance of promotion as from January 2011. I would uphold the judge’s assessment for pre-trial loss. Future loss of earnings 27.The judge considered future loss of earnings under 3 aspects: (1) the reduction in earnings as the chief mate on the tug boat compared with the pre-accident earnings as the deputy captain on the barge; (2) the loss of earnings on account of the loss of promotional prospect to be the captain of the barge; and (3) the possibility of a reduction in income by reason of being re-deployed by the employer as a watchman with a lower salary. 28.On item (1), the amount awarded by the judge was RMB 150,704. The judge took a multiplier of 7 years, taking the retirement age at 60 and considering the nature of work as a seaman. He took into account a 10% pay rise in the level of income over the 7-year period. The calculation was RMB (5,331 – 3,700) x 110% x 12 x 7 = RMB 150,704. 29.For item (2), the judge cited the relevant cases and assessed the claim by the evaluation of the lost chance of promotion as the captain of the barge. The approach he took was to enquire first if the evidence disclosed a substantial chance of the event materialising, and if so to assess the lost chance as a percentage. He found on the evidence there was a real prospect of the plaintiff’s promotion to be the captain of the barge if not for the accident. Taking into account the 2 letters from the employer dated 10 February 2010 and 20 July 2010, the judge was of the view it would be reasonable to consider that the promotion would likely take place in the near rather than the distant future. The question was one of timing. While taking note of the good prospect of promotion but bearing in mind the uncertainty about timing, the judge assessed the overall chance of the promotion to be 60%. The calculation was RMB (6,367 – 5,331) x 110% x 12 x 7 x 60% = RMB 57,436. 30.On item (3), the judge accepted the evidence from the plaintiff and in the letter of the employer dated 20 July 2010 that the plaintiff’s present position as the chief mate on the tug boat was a temporary arrangement tailor-made for him, that the employer is keeping the situation under review and whether the plaintiff would be able to keep his present position would depend on his physical ability to discharge his duties and his employer’s assessment whether he should be allowed to continue in that position, having regard to the overall efficiency and safety of the operation of the tug boat. Whilst noting that the evidence does not indicate an imminent danger of re-deployment as a watchman, the judge considered that the risk should be taken into account given the somewhat precarious nature of his position and assessed the overall chance of the risk at 25%. The calculation for the loss on account of the risk of re-deployment was RMB (5,331 – 1,100) x 110% x 12 x 7 x 25% = RMB 97,736. 31.The aggregate amount arrived at by the judge for future loss of earnings was RMB (150,704 + 57,436 + 97,736) = RMB 305,876. 32.The plaintiff took issue with the following matters on appeal:
33.The defendants raised the following contentions in their cross appeal:
34.With the exception of the matter in (6), which was rightly conceded by the plaintiff’s counsel, it does not appear to me there is merit in the submissions in support for the other matters raised in the appeal or cross appeal. 35.On the appropriate multiplier, Mr Szeto pointed out that the retirement age referred to by the judge was specific to the position of the captain, according to the plaintiff’s witness statement. As there was no evidence on the retirement age of other positions, he submitted that the court should adopt the “normal” retirement age of 65 and that a multiplier of 10 years would be reasonable in this situation. I see no basis to interfere with the judge’s choice of a multiplier of 7 years. He had taken into account not just the retirement age of 60, but also the strenuous nature of the work of a seaman. 36.Mr Kwok submitted no evidence was led on any notional increase in the level of income of the plaintiff’s job over the next 7 years, so the judge was wrong to apply a 10% increase to the salary to reflect possible increase in wages over that period. The judge is entitled to take into account matters of common knowledge such as the trend of inflation. There is no basis to interfere with the 10% notional increase of wages adopted for a 7-year period, which is a very conservative estimate on any view. 37.Mr Szeto attacked the judge’s assessment of 60% for the loss of the chance of promotion on grounds similar to his attack in respect of the loss of promotion prospect for pre-trial loss of earnings. The complaint was that the judge should not have taken the uncertainty as to the timing of promotion into account and made a discount of 40%. He submitted that the judge should have made no discount, i.e. awarding 100% of the loss to the plaintiff or should have made a discount of 20% only as the plaintiff was “on course for promotion” and there was no evidence of competition. For the reasons I have given earlier, I do not think his criticisms are valid. There is no basis to award 100% of the loss to the plaintiff. The judge had considered the evidence carefully in arriving at 60% as his evaluation of the lost chance. Mr Kwok also drew our attention to Cheung Man Fai v To Yu Bun & Anr, HCPI 886/2003, 29 April 2005, paras 80 to 90, in which Suffiad J took a similar approach and discounted the award for loss of promotion prospects by 60% to take into account the uncertainty when a police constable would have achieved promotion to the rank of sergeant, having concluded it likely that the plaintiff would have achieved that goal in the period of 24 years before his normal retirement age. I see no grounds to interfere with the judge’s discount of 40% in the present case. 38.Mr Szeto’s complaint about the evaluation of the risk of re-deployment at 25% is equally without merit. He contended there should be no percentage discount at all, alternatively the percentage discount should only be 20% and in any event no greater than 50%. The judge had taken into account the risk of re-deployment was not imminent and evaluated the risk at 25%. There is no basis to interfere with his evaluation. 39.Mr Kwok also attacked the evaluation of the risk of re-deployment at 25% but arguing in the opposite direction that no award should have been made at all, alternatively only a lump sum of RMB 2,500 to reflect the minimal risk. He contended that on the evidence, the judge should have found that the plaintiff is fully capable of performing the duties of the chief mate on the tug boat, so there would be no risk or minimal risk of re-deployment. The evidence is to the contrary. Although the plaintiff was mainly involved in light duties, there had been occasions when he had to exert himself by moving ropes and pulling cables. He could only take over the steering for short periods as he could not sit for a long time. When he was walking in the cabin or when the vessel was rocking, he would use strength on his waist and back and that would cause him sharp pain. He was unable to share the work load on the tug boat evenly with the other crew members. He could not work on the tug boat on a long term basis with his condition. His present position was just a temporary arrangement, it was tailor made for him and his employer kept the situation under review. It is clear from the employer’s letter of 20 July 2010 that there was a possibility of re-deployment as a watchman. There is no basis to disturb the judge’s finding and evaluation. 40.To sum up the above, the only variation I would make to the judge’s award for future loss of earnings is as regards the loss for the risk of re-deployment in that he should have taken the difference of wages between the chief mate and a watchman. The calculation should be RMB (3,700 – 1,100) x 110% x 12 x 7 x 25% = RMB 60,060. The total award of RMB 305,876 would be reduced to RMB 268,200. Loss of earning capacity 41.The judge made an award under this head, holding that this is a separate item to compensate the plaintiff for the disadvantage in the labour market if he should lose employment with his present employer altogether. He had regard to the fact that the only training the plaintiff had received was as a seaman and that the plaintiff has no other special skills. The judge held that the plaintiff would suffer disadvantage in the labour market if he were asked to retire or otherwise lost his job with the present employer. The judge took into account the possibility of the employer re-deploying him as a watchman, so the chance of his losing his job completely would be reduced. Taking all these matters into account, the judge made an award equivalent to 6 months’ earnings. The calculation was RMB 5,331 x 6 = say, RMB 32,000. 42.Mr Kwok submitted that this award was a duplication of the award for the loss due to the risk of re-deployment. He contended there should be no award; alternatively, the award should be reduced to an amount calculated by reference to the earnings of the chief mate (at RMB 3,700) for 3 months, or a lump sum of RMB 5,000 or less. 43.I do not agree there was any overlap with the award for the loss due to the risk of re-deployment. As the judge had explained, this award is to compensate the separate and foreseeable loss due to disadvantage in the chances of obtaining a job if the plaintiff had to look for employment in future. I would agree with Mr Kwok that the damages under this head should be assessed with reference to the wages of the job that the plaintiff was holding at the time of the trial, and that should be the wages of the chief mate, not of the deputy captain as the judge had held. 44.I would vary the award of RMB 32,000 and substitute it with an award of RMB 3,700 x 6 = RMB 22,200. Loss of congenial employment 45.The plaintiff sought an award under this head on the basis that before the accident, he was the deputy captain of the barge and occupied a position that commanded respect from others and gave him much job satisfaction. As a result of his injuries, he took up the lower position of the chief mate on the tug boat and this has undermined his self-esteem. The plaintiff argued that his case was comparable to that of Wong Sau Lai v Cathay Pacific Airways Ltd, HCPI 111/2002 (on appeal [2005] 4 HKLRD 395 and (2006) 9 HKCFAR 371), in which that plaintiff was forced to quit her “dream job” as a flight cabin attendant and $120,000 was awarded under this head. 46.The judge declined to make an award here, for the reason that the plaintiff was still employed as a seaman, and that occasionally he would take over certain navigation duties of a captain or deputy captain on the tug boat. 47.Mr Szeto submitted on appeal it is not a pre-requisite that a plaintiff would have to leave his original profession for such an award to be made. In support of this, he cited 3 cases as examples in which the plaintiffs were retained in their existing jobs (Liu Chun Kow Joe v Lee Sau Wing, HCPI 399/2001, 15 February 2007 (an officer of the Correctional Services Department); Yip Chung Man v Secretary for Justice, HCPI 485/2001, 13 April 2010 (a police constable); and Chong Siu Lung v Au-yong Shong Samuel & Anr, HCPI 489/2008, 12 January 2010 (also a police constable). 48.As to the plaintiff taking up certain navigation duties of a captain or deputy captain on the tug boat, counsel pointed out that the plaintiff had only done so for very short periods and they were not a regular part of his responsibilities. Significantly, the plaintiff had lost his chance of promotion and his present job was under regular review. From being an asset to his employer, he had become a burden to his employer and his colleagues on the tug boat. The barge and the tug boat are very different in character and function; the former is a large volume container barge and the tug boat is much smaller and does not carry goods. As the deputy captain on the barge, he occupied the position of a team leader and commanded the respect of his crew members. His present position as the chief mate on the tug boat was limited and inferior. Mr Szeto sought an award of RMB 100,000. 49.I accept the above submissions. Mr Kwok argued that there was no evidence to prove loss of job satisfaction, loss of pride and low self esteem. I think the facts speak for themselves. The plaintiff’s situation is not comparable to the case of Chan Yiu Ping v Mok Yuk Kwong & Ors, HCPI 92/1998, 3 July 2000 relied on by Mr Kwok. 50.I would allow the plaintiff’s appeal in respect of this head of damages. Having considered the level of awards in the cases cited by the plaintiff, I would make an award of RMB 100,000 as sought. Care and attention of the plaintiff’s wife 51.The plaintiff claimed RMB 10,000 under this head, on the basis that during the period of hospitalisation, he was bed-ridden and his wife looked after him by preparing food for him, bathing him and assisting him to go to toilet. 52.The judge declined to make an award due to the lack of evidence to support the claim. The only evidence is in the plaintiff’s witness statement in which he said when he was in hospital, his family had often visited him and had also brought him nourishing food and soup. 53.Mr Szeto submitted on appeal that the judge had found that the plaintiff was bed-ridden for a month and had to wear a corset for 48 days, and as his family had visited him often in hospital, that should be sufficient for the judge to infer that care and attention were provided by his wife when he was in hospital. Counsel further pointed to the revised statement of damages, in which it was stated that the wife looked after the plaintiff in hospital in the manner as described and the statement of damages was verified by the plaintiff’s statement of truth at the end. 54.I am unable to accept these submissions. The fact remains no evidence was adduced at the trial to support a claim for the care and attention of the wife during the time the plaintiff was in hospital. The court cannot assume that apart from the nursing care of the hospital staff, there was care and attention provided by any family member that would call for an award to be made. I would dismiss the plaintiff’s appeal in respect of the refusal to award damages under this head. Summary and costs 55.In summary, the awards made to the plaintiff to the extent as varied above would be as follows:
56.Thus, the outcome of the appeal and cross appeal is that the award made by the judge of HK$250,570 and RMB 474,668 would be increased by RMB 52,524. 57.I would propose to make a global order for the costs of the appeal and the cross appeal. As the plaintiff is the successful party overall, he should have the costs of the appeal and the cross appeal. This would be an order nisi. I would further order the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.
Mr Patrick Szeto, instructed by Ip, Kwan & Co, for the plaintiff (appellant) Mr Tim Kwok and Mr Tony Chow, instructed by Holman Fenwick Willan, for the 2nd and 3rd defendants (respondents) | ||||||||||||||||||||||||||||||||||||||||||||||||
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