Tag: section 186 Motor Vehicle Act

Some Thoughts on Section 173 of the Motor Vehicle Act

Although the BC Motor Vehicle Act specifcally addresses the right of way at intersections controlled with and without yield signs, the legislation does not specifically address the right of way when vehicles approach and stop at a 4 way stop-sign controlled intersection at the same time.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing this.
In last week’s case (Demarinis v. Skowronek) the Plaintiff and Defendant approached an intersection at approximately the same time.  Ultimately the Court found that the Defendant approached first and had the right of way.  Before getting to this conclusion the Court addressed the commonly held notion that the driver to the right enjoys the right of way at 4 way intersections.  The Court provided the following reasons:

[26]The plaintiff argues that since both parties entered the “intersection” almost simultaneously, because the plaintiff was to the right of the defendant, she had the right-of-way. Accordingly, the defendant had a corresponding obligation to yield the right-of-way to her.

[27]Surprisingly, neither party was able to identify any case law which arose from circumstances similar to those in this case. The plaintiff argues, however, that the excerpts from the ICBC publication “Road Sense for Drivers, British Columbia Driving Guide”, which includes the following guidance for “four-way stops”, is of assistance:

four-way stops — when there are stop signs at all corners:

• The first vehicle to arrive at the intersection and come to a complete stop should go first.

• If two vehicles arrive at the same time, the one on the right should go first.

[28]In doing so, the plaintiff accepts that the Road Sense Guide does not contain “rules of law”, but submits that the Guide, in combination with other considerations, can inform the standard of care which is relevant in particular circumstances.

[29]I do not consider that the Guide advances the proposition that the plaintiff advocates. The foregoing language from the Guide, and in particular the words, “the first vehicle to arrive at the intersection and come to a complete stop should go first”, presupposes that the four stop signs at an intersection will be placed at the same distance from the intersection at issue. The excerpt from the Guide also treats the words “intersection” and “stop sign” synonymously. Were it otherwise, there would be no need for a vehicle to stop at the intersection. Instead, more properly or more precisely, the vehicle would be required to stop at the stop line.

From my perspective it appears litigants need not rely on the ICBC Driving Guide to establish the right of way analysis.  Looking at section 173  it states that:

if 2 vehicles approach or enter an intersection from different highways at approximately the same time and there are no yield sign the driver of a vehicle must yield the right of way to the vehicle that is on the right of the vehicle that he or she is driving.”

A four way intersection controlled by stop signs is an intersection where “there are no yield signs” so the above section appears to be applicable.

Please feel free to comment if you have differing views on the subject.

No Liability For Motorist Struck While Stopped on Painted Stop Line

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering sections 129 and 186 of the Motor Vehicle Act and liability for a crash based on the positioning of a stopped vehicle at an intersection.
In this week’s case (Eissfeldt (Guardian ad litem of) v. Eissfeldt) the Defendant was stopped “on..the painted stop line” in a desginated left hand turn lane at an intersection.

An intersection collision occurred between other motorists propelling one of the vehicles into the stopped Defendant’s truck.  The Plaintiff, a passenger in one of the other vehicles, sued the drivers of all three vehicles arguing all were to blame.  The Plaintiff argued that the Defendant truck driver was negligent in improperly stopping his vehicle “on rather than behind the painted stop line” arguing that this was in breach of section 186 of the Motor Vehicle Act.
Mr. Justice McEwan disagreed and dismissed the claim against the motorist.  In doing so the Court found that section 186 was limited only to stop sign controlled intersections (as opposed to traffic light controlled intersections) but in any event the Defendant’s actions were not negligent.  The Court provided the following reasons:

[18] …. Section 186 applies to intersections controlled by stop signs, not traffic control signals. The duty outlined in s. 129 is to stop before the marked crosswalk. There is no question that Mr. Brown did so, as can be seen in the photographs. There is no suggestion in the Act, and none of the case law supports the notion that where stop lines are painted in the left turn lane ahead of a crosswalk, there is a duty to stopbefore rather than on them, as long as the vehicle does not enter the marked crosswalk. In this regard Mr. Brown’s acknowledgment that he intended to stop before the line may mark a slight deviation from the standard he meant to achieve, but it is not evidence that obliges the court to impose a higher standard on Mr. Brown than that set out in the section. It is not at all clear that the stop lines are anything more than guides to ensure that vehicles do not encroach the crosswalk and the intersection, which are the duties imposed by the section.

[19] As the cases show, statutory duties have been superimposed on the common law duty of care and may create a modified standard in the circumstances to which they pertain. The context remains important, however. The concern of a motor vehicle operator at an intersection controlled by a traffic signal is for pedestrians and traffic lawfully crossing or turning in the intersection. The assessment of risk begins with the premise that one may rely on other drivers to obey the rules of the road, subject to the qualifications set out in the cases. (See paras. 8 and 9 herein).

[20] The occurrence of a random event precipitated by the failure of others to obey the rules of the road (I do not know which of the other defendants this may be or to what degree they may share liability), is not the sort of harm that could be described as foreseeable by Mr. Brown. In the circumstances it is obvious that he was in no position to react as the collision transpired.

[21] There is simply no basis, in my view, for a finding that Mr. Brown failed in his statutory duty, which was to avoid the crosswalk and the intersection at the red light. That duty did not extend to anticipating the possibility that a vehicle might suddenly lose control as a result of a collision and veer into his path, obliging him to guess where to place his vehicle in order to avoid such a contingency.

[22] Giving full consideration to the fact that the court must be very careful not to permit litigating in slices and the risk of embarrassing consequences as a result of ruling on an incomplete view of the case, I consider this to be an example of a circumstance where it is appropriate to apply Rule 9-7(15). Mr. Brown was not in breach of the relevant statutory duty found in s. 129. Section 186 of the Motor Vehicle Act does not apply. Whether or not the impact with his vehicle contributed in any respect to the plaintiff’s claims, Mr. Brown’s vehicle was not where it was as a result of any negligence on his part.

Motorist with Right of Way Found 40% at Fault For Intersection Crash

UPDATE – June 12, 2013 -the below decisions addressing liability was upheld by the BC Court of Appeal.  The matter was set back to the trial judge, however, because the BCCA concluded the trial judge made a palpable error when assessing damages)
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As discussed earlier this week, having the right of way is only one factor which determines fault for a collision.  A motorist with the right of way still needs to maintain a proper lookout otherwise they can share fault for a collision.  This was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry, in the context of an intersection crash.
In this week’s case (Sangha v. Chen) the Plaintiff was driving northbound on Willow Street in Vancouver, BC.  As he entered an intersection the Defendant, who was faced with a stop sign, came through a side street resulting in a collision.

Although the Plaintiff had the right of way both motorists were found at fault.  In assessing fault at a 60/40 split Madam Justice Boyd provided the following reasons:

[34]In the case at bar, I am satisfied that Chen stopped at the stop sign, that she moved forward to check for northbound traffic and that, finding there was none, she began to move out into the intersection.  Unfortunately from that point forward she simply proceeded forward in her slow course across the intersection, without keeping any continuing lookout for oncoming northbound traffic.  Chen did not, therefore, become the dominant driver.  While she stopped and yielded to traffic, she failed to proceed with caution.  This was also a breach of her common law duty to other users of the highways because she clearly failed to meet the standard of care as set out by Lambert J.A. in Carich v. Cook: “care should be taken throughout the turn and as each new lane is entered to make sure that the situation as it was assessed when the turn started has not changed in the meantime”.

[35]For his part, I am satisfied that the plaintiff was likely travelling over 30-40 kph, although perhaps still within the speed limit.  Contrary to his evidence, I find that at the last moment, he did (perhaps even unconsciously) see the defendant’s vehicle and did slam on the brakes momentarily (accounting for the initial jerking motion Dr. Temple experienced).  While he could not avoid hitting the defendant’s vehicle (which by this time was in his lane of traffic), his vehicle effectively came to a stop on impact, although rotating somewhat to the right in a counter-clockwise direction.

[36]While the plaintiff may have remained the dominant driver, he had a duty to exercise reasonable care even if those around him did not respect his dominant position.  He clearly did not exercise reasonable care as he failed to keep a proper lookout.  The fact the defendant proceeded slowly across the intersection and that the collision occurred on the far side of the intersection convince me he should have seen the plaintiff earlier.  Had he kept a proper lookout he would have seen her vehicle earlier than he did and thus could have applied his brakes to avoid the collision.  But he had not kept a proper lookout and the accident ensued.

[37]In determining the division of liability, the court is to consider the relative responsibilities of the parties for the accident: Salaam, para. 35-38.  This is not a case similar to Amador, Ryonand Salaam where one driver saw the other and made a decision to proceed in a certain manner, while the other driver failed to see them and keep clear.  Here, neither driver saw the other prior to impact when the circumstances are clear that they should have.  Liability must therefore be shared more evenly.  That being said, while both parties failed to keep a proper lookout, and failed to see what was there to be seen, the defendant, as the servient driver, had a higher standard of care and the plaintiff, to a certain extent, was permitted to expect servient drivers to respect his dominant position.  Thus the negligence of Chen contributed more to the accident than that of the plaintiff.

[38]In all the circumstances I find that the defendant is primarily liable for this collision.  In this case, I would divide liability 60% against the defendant and 40% against the plaintiff.

The Dangers of Passing Vehicles Near Intersections

When a driver proceeds into the on-coming lane of travel to overtake another vehicle care must be taken.  This is particularly so near intersections.  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver, Registry, addressing fault for a collision arising in such circumstances.
In yesterday’s case (Johel v. ICBC) the Plaintiff stopped at a stop sign.  She intended to make a left hand turn.  The vehicle approaching from her left was slowing and signalling intending to make a right hand turn.  The Plaintiff felt it was safe to proceed with her turn and entered the intersection.  At the same time the Defendant’s vehicle chose to pass the third party by entering the on-coming lane of travel.  A collision occurred.

(Accident Reconstruction Software courtesy of SmartDraw)
The Defendant fled leaving the Plaintiff with the remedy of suing ICBC under section 24 of the Insurance (Vehicle) Act.  Ultimately Mr. Justice Bernard found the unidentified vehicle fully at fault for the crash.  In doing so the Court provided the following reasons for judgement:

[13] In the circumstances of the case at bar, the obligations of the plaintiff under the Act are found in ss. 165(2), 186, and 175(1).

[14] Section 165(2) applies to drivers making left turns at intersections where traffic is permitted to move in both directions on each highway entering the intersection. The provision sets out the obligations of a driver in such a situation. Section 186 obliges a driver approaching a stop sign to stop at the marked stop line. There is no evidence or suggestion that Ms Johel failed to comply with these rules of the road.

[15] Section 175(1) sets forth the obligations of a driver entering a through highway from a stop sign. The defendants say the plaintiff failed to yield, as required by this provision. Section 175(1) reads as follows:

175(1). If a vehicle that is about to enter a through highway has stopped in compliance with section 186,

(a) the driver of the vehicle must yield the right of way to traffic that has entered the intersection on the through highway or is approaching so closely on it that it constitutes an immediate hazard, and

(b) having yielded, the driver may proceed with caution.

[16] The statutory obligations of the defendants are found in ss. 155(1)(c), 157(1), 159, 160, and 175(2) of the Act.

[17] Section 155(1)(c) obliges a driver to drive to the right of a single line, broken or solid, except only when passing an overtaken vehicle. There is no evidence or suggestion that the defendant driver drove to the left of the solid yellow line except for the purpose of overtaking Mr. Lam.

[18] Section 157(1) sets forth the obligations of the overtaking vehicle vis-à-vis the overtaken vehicle. There is, again, no evidence or suggestion that the defendant driver did not comply with this rule.

[19] Sections 159 and 160 set forth the obligations of drivers passing on the left. They state as follows:

159. A driver of a vehicle must not drive to the left side of the roadway in overtaking and passing another vehicle unless the driver can do so in safety.

160. A driver of a vehicle must not drive to or on the left side of the roadway, other than on a one way highway, unless the driver has a clear view of the roadway for a safe distance, having regard for all the circumstances.

[20] Section 175(2) obliges a driver on a through highway to yield to a vehicle which has entered the highway in compliance with s. 175(1). The plaintiff says the defendant driver of the white car failed to yield, as required by this provision. Section 175(2) states as follows:

175(2). If a vehicle is entering a through highway in compliance with subsection (1), traffic approaching the intersection on the highway must yield the right of way to the entering vehicle while it is proceeding into or across the highway….

[29] Having regard to all the evidence and the positions of the parties, I find: (a) that Ms Johel was attentive and observant while stopped at the stop sign; (b) that Ms Johel proceeded with caution into the intersection and, at the time, the only traffic in her view was the car of Mr. Lam; (c) that the defendants’ white car was, at the time, to the left of Mr. Lam and, thus, hidden from Ms Johel’s view; and, (d) that at the time of collision, the white car was straddling the centre line and Ms Johel’s car was crossing it and heading slightly eastward.

[39] Having regard to all the foregoing, I conclude: (a) that when the defendant driver overtook Mr. Lam he or she did so in breach of ss. 159 and 160 of the Act; (b) that the defendant driver failed to meet the requisite standard of care; and (c) that the defendants are solely at fault for the collision.

Plaintiff At Fault in Fatal Tractor Trailer Collision for Running Stop Sign

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with the issue of fault following a two vehicle collision.
In last week’s case (Rackstraw v. Robertson) the Plaintiff was involved in a collision with a tractor trailer.  The tractor trailer was travelling Northbound on Mount Lehman Road.  The Plaintiff was travelling eastbound on Sunset Crescent which forms a T-intersection with Mount Lehman Road.

The Defendant “decided to pass a northbound vehicle ahead of him”.   To do so he accelerated above the speed limit and had to travel in the southbound lane.  As he did so he saw the Plaintiff approach the intersection and run the stop sign which was facing him on Sunset Crescent.  The vehicles collided and the Plaintiff died shortly after.
Ultimately the Plaintiff was found fully at fault for the collision.  In reaching this conclusion Madam Justice Fisher provided the following reasons:
[25] Mr. Rackstraw owed a duty of care to other drivers travelling on Mount Lehman Road, in particular Mr. Robertson.  He breached that duty by failing to stop at the stop sign, failing to keep a proper lookout and failing to yield to the Robertson vehicle when he entered the roadway on Mount Lehman Road.  Mr. Rackstraw was the servient driver at all times…
[32] …. the fact that Robertson was travelling over the speed limit will only constitute negligence if his speed is what prevented him from taking reasonable evasive action: see Cooper v. Garrett, 2009 BCSC 35 at para. 42.  In my view, there is no evidence which establishes that Robertson’s speed prevented him from doing so. His truck was just about at the intersection when he first saw Rackstraw’s vehicle, and only his trailer, or part of it, was still in the southbound lane when the impact occurred…
[37]it is my opinion that the accident in the case at bar was caused solely by the failure of Mr. Rackstraw to stop at the stop sign, to keep a proper lookout and to yield to the Robertson vehicle when he entered the roadway on Mount Lehman Road.  When Robertson started his pass, there was no reason for him to believe that he could not do so safely or that he would interfere with the travel of another vehicle.  As in Ferguson, he was engaged in a lawful manoeuvre.  He did not see, and could not reasonably have seen, the Rackstraw vehicle until he was just about at the intersection and he had no reasonable opportunity to avoid the collision.

When Servient Motorists Become Dominant

Section 175 of the Motor Vehicle Act addresses when a motorist faced with a stop sign gains the right of way when crossing a highway.   In short, motorists faced with a stop sign can enter an intersection after stopping provided that approaching traffic is not “so close that it constitutes an immediate hazard“.  Once a motorist complies with this requirement and “proceeds with caution” into the intersection they gain the right of way and approaching traffic must yield the right of way.
Anyone who has spent any time on the road knows that this reversal of the right of way is not always honoured by motorists.  However, failure to follow section 175 of the Motor Vehicle Act can not only lead to a moving violation, but also to a significant apportionment of fault following a collision.  This was discussed in reasons for judgement released last week by the BC Court of Appeal.
In last week’s case (Lutley v. Southern) the Defendant (Appellant) was attempting to cross Oak Street in Vancouver, BC.  The Defendant was travelling on 67th Avenue.  She had a stop sign in her direction of travel.  At the intersection Oak Street had 6 lanes of travel.  The Plaintiff (Respondent) was travelling in the lane furthest away from where the Defendant entered the intersection.  As the Plaintiff approached the intersection she was faced with a flashing green light.  Neither party saw each other’s vehicle until it was too late and a collision occurred.

(Accident Reconstruction Software courtesy of SmartDraw)
At trial both parties were found at fault with a 60/40 split of liability in the Plaintiff’s favour.  The Defendant appealed arguing the Plaintiff should have shouldered more than 40% of the blame.  The BCCA dismissed the Appeal finding that while there was a range of acceptable outcomes in apportioning blame there was no error in law in the trial judge’s assessment.  There was, however, a strong dissent written by Mr. Justice Chiasson stating as follows:












[48] The respondent was under a positive obligation to be able to stop before entering the intersection.  She was unable to do so.   The appellant was lawfully in the intersection and entitled to the right of way.  The respondent was passing stopped vehicles on her left with clear knowledge of potential danger at the intersection.  On the evidence of the respondent and Mr. Nagy, it is apparent that the appellant had been in the intersection for some time.  The respondent gave various estimates of how long the 67th Avenue light had been green (from four to six seconds; it turned green when she was approximately three normal city blocks away; there was ample time for a pedestrian or motor vehicle to traverse the intersection). The appellant had no indication that there was a vehicle in the curb lane or that the respondent would enter the intersection in complete disregard of her statutory obligations.

[49] Lane six presented a new danger to the appellant. While in my view her speed through the intersection was not inappropriate, she testified that she did not slow down before entering lane six.  The judge rejected her evidence that she looked up the lane and he concluded both vehicles were, at that point, travelling too quickly.  Had the appellant slowed it is possible that she may have seen the respondent, although this also may have placed her into a position where the collision would have been more serious.

[50] While a dominant driver is entitled to assume servient drivers will obey the rules of the road, a dominant driver cannot act unrealistically.  It is an unfortunate reality that servient drivers like the respondent do disregard their obligations and dominant drivers cannot ignore that fact.  A dominant driver passing through an intersection who is confronted with a new risk – a seemingly empty curb lane the view of which is obstructed – must proceed with some caution.

[51] An appellate court rarely will interfere with a trial judge’s apportionment of liability (MacDonald (litigation guardian of) v. Goertz, 2009 BCCA 358, para. 58), but will do so if the judge has made a palpable and overriding error of fact, misapprehended the evidence or erred in principle.  It is an error of law not to take into account the fact a party was the dominant driver (Bedwell v. McGill, 2008 BCCA 6, para. 59) or to fail to recognize the significance of a servient driver’s negligence (Gautreau v. Hollige, 2000 BCCA 390, para. 18; quoted in Bedwell)

[52] In my view, the trial judge erred in law by failing to conclude that the appellant was lawfully in the intersection and had the right of way and in failing to address the onerous responsibility of the respondent. The respondent was passing on the right of stopped vehicles, was the servient driver and obliged to yield the right of way to the appellant and was entering an intersection with a flashing green light with the obligation to be able to stop her vehicle before entering the intersection.  I would place the majority of fault on the respondent and would apportion liability 85% against her and 15% against the appellant.













The Duty of Motorists Approaching Flashing Green Lights

Further to my recent post discussing this topic, Section 131(5) of the BC Motor Vehicle Act requires a driver approaching a flashing green light to travel with sufficient caution so they can bring their vehicle to a stop should it be necessary.  Failure to do so could result in fault for a crash even if another motorist fails to yield the right of way.  This was discussed in reasons for judgement released earlier this month by the BC Supreme Court, Vancouver Registry.
In the recent case (Lutley v. Southern) the Defendant was attempting to cross Oak Street in Vancouver, BC.  The Defendant was travelling on 67th Avenue.  She had a stop sign in her direction of travel.  At the intersection Oak Street had 6 lanes of travel.  The Plaintiff was travelling in the lane furthest away from where the Defendant entered the intersection.  As the Plaintiff approached the intersection she was faced with a flashing green light.  Neither party saw each other’s vehicle until it was too late and a collision occurred.

(Accident Reconstruction Software courtesy of SmartDraw)
Mr. Justice Rice found both drivers at fault with the Defendant shouldering 60% of the blame.   Although the Plaintiff entered the intersection on a green light she was found partly to blame for failing to comply with section 131 of the Motor Vehicle Act.  In addressing the issue of fault Mr. Justice Rice provided the following reasons:

[12]         By the Motor Vehicle Act, s. 131(5), a driver approaching a green flashing light at an intersection is obliged to slow down sufficiently to be able to stop before the intersection and avoid an accident.  I find that the plaintiff was negligent and in breach of her statutory duties by failing to slow down sufficiently to be able to stop at the intersection.  She could see that her vision of the intersection was obstructed and would continue to be obstructed practically until she had reached the intersection itself.  She should have applied her brakes as soon as the obstruction appeared and come to practically a stop at or near the intersection.

[13]         By the Motor Vehicle Act, ss. 125, 186 a driver approaching a stop sign must come to a full stop.  There is also a general duty to drive safely, maintain a proper lookout, and not to proceed forward until it is safe to do so.  I find that the defendant was negligent and in breach of her statutory duty in failing to maintain a proper lookout and by accelerating through the intersection when it was not safe to do so…

[18]         In conclusion, I find that both drivers were negligent and in breach of duties imposed upon them pursuant to the Motor Vehicle Act, R.S.B.C. 1996, c. 318 at ss. 125, 141.  I apportion liability at 60% to the defendant and 40% to the plaintiff.

Expert Reports and the New Rules of Court: The "Factual Assumptions" Requirement


One of the requirements in the new BC Supreme Court Rules is for expert reports to clearly set out the “factual assumptions on which the opinion is based“.  Failure to do so could result in a report being excluded from evidence.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this requirement.
In this week’s case (Knight v. Li) the Plaintiff attempted to cross 41st Avenue in Vancouver, BC when his vehicle was T-boned by a the Defendant.  The Plaintiff had a stop sign and was the ‘servient driver’.  The Defendant was speeding.  Mr. Justice Harris found the Plaintiff 75% at fault for the crash and the Defendant 25% at fault.  The reasons for judgement are worth reviewing in full for the Court’s through discussion of the legal principles at play in intersection crashes.
In the course of the lawsuit the Plaintiff introduced an expert report from an engineer.  The Defendant objected to the report arguing that it did not comply with the rules of Court.  Mr. Justice Harris ultimately did allow the report into evidence but made the following critical comments addressing an experts need to clearly set out the factual assumptions underpinning their opinions:

[38]         Our new Supreme Court Civil Rules codify the obligations of experts testifying in our Court. In my view, they restate obligations our law has long recognised. The Civil Rules require a clear statement of the facts and assumptions on which a report is based. It was incumbent on Mr. Gough to state clearly the assumptions on which his report was based. He did not do so. He did not provide me with an opinion of the effect of Mr. Li’s excessive speed on his ability to avoid the collision as he claimed. He gave me an opinion of Mr. Li’s ability to avoid the collision if certain assumptions favourable to Mr. Knight were made. He said nothing about being instructed to make those assumptions and nothing about the effect on Mr. Li’s ability to avoid the Accident if those assumptions did not hold.

[39]         It must be remembered that Mr. Gough’s report is his evidence. In my view, the report as written did not comply with the requirements in the Civil Rules to state the facts and assumptions on which it is based. There is nothing improper in an expert accepting assumptions of fact that affect the opinions the expert provides, but they must be clearly stated. If they are not, there is a real risk that the trier of fact could be misled. In this case it required cross-examination to demonstrate the implications of the assumptions for the conclusions reached about Mr. Li’s ability to avoid the Accident. In my view, in this case, given the opinion being offered, the report should have clarified the effect of the assumptions about Mr. Knight’s driving on the conclusions about Mr. Li’s ability to avoid the Accident. By failing to do so, this aspect of the report descended into little more than a piece of advocacy.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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