Liability to Visitors
Occupiers
The occupier refers to a person in control of property. This may be the owner, a tenant or another person in occupation and control. There can be situations where both the owner and occupier are each liable. If the accident is attributable to something in the state of the premises when it was first leased, the landlord may be liable. The occupier or tenant may also be liable for failure to control or repair the premises.
An occupier is somebody with sufficient control over the premises that he ought to realise that a failure on his part to take due care may result in injury to a person lawfully on it. The occupier need not have the exclusive occupation. He must have control, but he may share that control. Several parties together collectively may be occupiers.
A landlord may be an occupier to the extent that he maintains control over the premises. In the case of multiple-unit buildings, the landlord will usually retain control of and “occupy” the common and shared parts. Where he retains control or responsibility, he may be liable in respect of injuries that occur on the common parts.
Duty of Occupier
An occupier of property may be liable for accidents and damage caused to persons who enter in the property. A typical case might involve a slip or fall incident in which a person is injured.
The modern principle is that the liability of property owners is based on negligence law. Owners and occupiers of property must take reasonable care to avoid foreseeable damage and injury to persons on their properties.
The person primarily liable is the occupier. The occupier is the person who has control over the property. It is the element of control and management of the property that justifies responsibility for foreseeable accidents.
The occupier is not automatically liable for injury occurring on the property. There must be an element of fault, referable to failure to avoid a particular risk which could or should have been known to the occupier. Claims arise from some element, such as hidden risk or danger, that the occupier could have taken care to reduce or remove.
Static Condition v Activities
Occupiers’ liability relates to liability arising from the state and condition of the property. Where damage or injury results from an activity, the duty is determined by the law of negligence.
As with other negligence claims, regard must be had to the totality of the circumstances. For example, an adult may be taken to look after his own welfare. In contrast, a higher duty is likely to be owed to children. The occupier must anticipate that they will not necessarily look after their own interests in the same way as an adult.
The Occupiers Liability Act applies to liability arising from the state and condition of the property. This is separate from liability for activities undertaken on the property. Liability for activities is generally dealt with under standard negligence principles.
It is sometimes difficult to distinguish whether an accident is due to an activity or the state and condition of property. If somebody slips and falls as a result of a recent spill, this is likely to be dealt with on the basis of negligence in operations. However, in some such cases, the state and condition of the property may be the predominant factor.
The actual standard of care depends on the relationship between the person entering the land and the occupier. Higher duties are owed to persons on premises for commercial purposes than for non-commercial purposes. Higher duties are owed to invited persons than uninvited visitors and users. The lowest level of duty is owed to trespassers.
Duty to Visitor
The occupier owes a duty to visitors is to take care. It is a duty to take such care as is reasonable in the circumstances to ensure that the visitor does not suffer injury or damage by reason of a danger on the property.
It would appear the duty owed to visitors is very similar to that owed at common law. It is a duty to take reasonable care to ensure the claimant does not suffer an injury on the premises.
The occupier may restrict the duty to owed to visitors under the legislation by agreement or reasonable notice. The duty may be reduced where the person is on the property with another person who might be expected to provide for his safety e.g. adult and child.
Visitors
Visitors are persons entitled to come onto the property with express or implied consent, such as a customer. This includes persons other than recreational users, who are on the premises at the invitation of or with the consent of the owner or certain others, including a member of the occupier’s family or persons there for social reasons in connection with the occupier. It also includes those there by express or implied consent under a contract and persons on the property by reason of an independent right to do so.
In determining the duty of care to the visitor, account is taken of the entire circumstances. The basic duty is to ensure that the visitor does not suffer injury or damage because of any danger on the property.
The visitor would generally be expected to take a certain degree of care for his or her own safety. Less would be expected of a child or vulnerable person than of an adult.
If an adult comes on the premises with a child, that adult would be expected to take reasonable care of the child. However, if the children come on the premises alone, the occupier must foresee that they would be less capable is taking care of themselves.
Lowering the Duty
Parties may assume higher or lower duties to entrants by notice or agreement. Reasonable steps must be taken to bring notice of restricted duties to the public’s attention.
The duty to a visitor may be reduced by a contract or a notice to no less than the same duty owed to recreational users and trespassers. That is the duty not to injure them intentionally or act with reckless disregard for them.
The general rules in relation to the incorporation of terms in contracts do not apply. The occupier is presumed to have taken reasonable steps to bring the notice to the attention of a visitor, if it is permanently displayed at normal means of access. It is not necessary to show that the visitor was aware of it or that it has been incorporated into the contract.
Lower Standard to Recreational Users
Despite the statutory criteria for judging whether the occupier has acted with recklessness disregard, referring to negligence-type criteria, the standard is intended to be significantly lower than that owed to visitors.
Reckless disregard, the criteria for the duty owed to recreational users and trespassers is a significantly lower duty than that owed to visitors. In considering whether the person acted with reckless disregard, the court must take cognizance that the old common law test no longer applies.
This was the objective of the legislation. The prior law under which a general duty of care was extended to all parties, including, in some cases, trespassers, was intended to be reformed by the legislation.
Modification Issues
Warnings may be sufficient to discharge the occupier’s duties. The legislation provides that where an injury is caused by a danger of which the visitor has been warned, that this will not necessarily absolve the occupier unless it is enough, having regard to the warning to enable the entrant to avoid the injury or damage.
If the contract reduces the duty, it must be a contract between the entrant concerned and the occupier. He must not be a stranger to the contract.
An occupier is not liable to an entrant for injury or damage due to a danger existing and partly due to the negligence of an independent contractor if the occupier has taken reasonable care in the circumstances unless the occupier knows or ought to know that the work was not properly done.
There is a principle which features prominently employer liability cases whereby the courts will not allow an occupier to delegate his duties to manage property by contract, by delegating responsibility.
An occupier is entitled to defend himself, others and property. There must be a reasonable proportion between the force used and the necessity. It is not permissible, for example, to subject a trespasser to spring guns and other things that deliberately endanger him.
The Act does not reduce the general duties of businesses which carry goods, and persons for reward are not affected.
Hotels
The Hotel Proprietors Act provides that the hotel occupier is under a duty to take reasonable care of the person of the guest and to ensure, for the purpose of use by the guest, that the premises are as safe as reasonable care and skill can make them. The duty is owed to guests, whether or not there is a contractual relationship with them.
Nature of Duty Cases
In Stokes v South Dublin County Council [2017] IEHC 228
“I do not think that the legislation intended that there should be changing duties of care owed to an entrant, depending on what activity he or she was doing at any one time. It would be absurd that if I invited a man to come to my house he would be a visitor while he walked up to the front door and entered the property, but would be a recreational user if he went into the back garden to kick a ball with my son, only to revert to being a visitor when he finished the game and came back into the house to have a drink or a meal.”
O’Flynn v Cherry Hill Inns Ltd t/a Oliver Plunkett Bar [2017] IECA 211, the judge said “an occupier is not the insurer of the welfare of a visitor and their duty of care does not extend to taking all steps as might be necessary to ensure … that the visitor will not be injured whilst on their premises”.
Case Fall from Window
In Platt v OBH Luxury Accommodation Ltd [2015] IEHC 593, a hotel guest was injured when he fell from his very low bedroom window while attempting to smoke. The window design did not conform with building regulations including in particular the requirement for guarding to prevent a fall in the circumstances.
“The window in question was unsafe and constituted a danger to lawful visitors in the premises, including the plaintiff who fell from it, thus rendering the occupier and hotel proprietor of the premises … liable both in common law negligence and for breach of its statutory duty of care under the relevant provisions of the Acts.”
Case Hidden Walkway
McNamara v University College Dublin [2015] IEHC 90 the plaintiff was injured when walking on a crowded walkway when his knee hit a bollard in a crowded walkway. The bollards were claimed not to be visible by reason of the large volume of people on the walkway.
“This duty is defined as an obligation to take such care as is reasonable in all the circumstances to ensure that a visitor does not suffer injury or damage by reason of any danger existing on the property. As to that duty, it is clear that merely establishing that an accident occurred on premises is not enough. The plaintiff must show that a danger existed by reason of the static condition of the premises; that in consequence of it he/she suffered injury or damage; and that the occupier did not take such care as was reasonable in the circumstances to avoid the occurrence. The duty of care so defined is at a markedly higher level than that which applies to recreational visitors, such as those exploring the countryside or historical sites, or to trespassers.”
“The bollards were isolated in the sense that they were not part of a line of bollards. They were a low lying obstacle, measuring only 18 inches high. When there was a large number of people on the walkway, their presence would have been obscured to pedestrians coming from the Glenamena end of the walkway. In the circumstances, to place a low lying obstacle on the walkway created a danger at the locus.”
“The same result could have been achieved by placing posts across the walkway. This would have prevented cars going down the walkway, but would not have constituted a trip hazard to pedestrians on the walkway. If there were any underground cables in the area, the posts could have been moved forward or backwards as required.”
Various Cases
In Baldwin v National Museum of Ireland [2019] IEHC 593 a retired gentleman slipped descending the stairways at the National Museum and claimed there was an inadequate and unsafe system in the handrails where the rails ended before the last step.
“Although a great number of people have used the building and there has been an almost perfect record in terms of lack of accidents it is not however conclusive in the view of this Court that the defendants could not be liable ever in such circumstances.”
In White v Doherty [2019] IECA 295, the Court of Appeal upheld the High Court decision rejecting a claim by a plaintiff who tripped up the defendants caravan park on uneven ground where she had a mobile home for over 40 years.
Donnelly J
… no basis for considering that the evidence demonstrates that the ground consisted of an unusual danger over and above the type of uneven surface one might expect in a caravan park. Although this was a commercial caravan park where there had been works carried out prior to the accident, the surface which remained was more in keeping with the naturalistic settings which one expects to find at a caravan park. They are usually found in areas of natural beauty and, while not areas of wilderness, no visitor would expect pristine surfaces. A certain unevenness of the surface is to be expected.”
“In the absence of a finding by the trial judge that these loose or embedded stones had constituted an unusual danger by virtue of their size or the fact that they had recently been imported into the area it cannot be said as a matter of law that there has been breach of the common duty of care. On the contrary, the trial judge had found that the stones had not presented any problem with the cutting of the grass in the area. Having regard to the evidence as to the nature and condition of the area in which the respondent fell as found by the trial judge, it cannot be said that, as a matter of law, the trial judge erred in her conclusion that the respondents had not breached the common duty of care.”
In Ahmed v Castlegrange Management Company Limited by Guarantee [2021] IEHC 704, it was held that an apartment management company owed a duty of care to one of the apartment owners who fell having slipped on ice outside his apartment early on a winter’s morning. Negligence was found in the failure to grit the area and provide lighting among other factors.
In Larkin v Carlingford Community Development Co [2019] IEHC 329, The plaintiff suffered injuries in a community hall controlled by the defendant due to a sticky floor caused by duct tape that had been used for carpet during a prior event. It was claimed the defendant was negligent in allowing the sticky residue to remain without without warning
Keane J., dismissing the claim. He thought that there was:
“… no doubt that the common duty of care on the defendant company, under s. 3(1) of the Act of 1995, as the occupier of the centre would extend to taking reasonable steps to ensure that a sticky residue was neither caused nor permitted to be present on the floor of the sports hall while it was being used for activities like playing indoor football. There is also no doubt but that Mr Larkin, as a visitor, would also be expected to take reasonable care for his own safety.”
“As many eminent authorities … point out, the plaintiff’s evidence must pass beyond the region of pure conjecture and into that of legal inference, although the dividing line between those two concepts is often a very difficult one to draw. In this case, [the plaintiff] has failed to satisfy me on the balance of probabilities that there was a sticky residue present on the part of the floor where he fell … and, by a slightly wider margin, has failed to convince me on the balance of probabilities, that an inference should be drawn that any such substance that may have been present there was the remnants of adhesive duct tape previously used to secure temporary carpeting that the defendant … had caused to be there or had failed to properly remove from there, or both.”
Holiday Centre
In Allen v Trabolgan Holiday Centre Ltd [2010] IEHC 129 a visitor to a holiday centre slipped on a path on which slimy mud had accumulated.
“Anyone putting their foot into it might easily have skidded. That danger would be increased through carrying a small child. Since Trabolgan is a family resort, the occupiers must expect people of all shapes, ages and sizes and that they would behave in the way that families do while relaxing, whether that be carrying children in a piggy back or playing on the grounds.”
There was a 25% reduction on the basis of the plaintiff’s contributory negligence. She was carrying a child on her back and her shoes had poor grip.
Some Children Cases
In Mulcahy v Cork City Council [2020] IEHC 547 the High Court dismissed a personal injuries claim by an eight-year-old child injured while jumping between boulders in a green area adjacent to her home.
“Analysing the case in terms of the common duty of care, the duty of an occupier is not to remove all dangers. I accept the defence evidence that children would climb on anything, and a case of this nature shows the possible hidden social cost of over-expansion of tort law. The logic of the plaintiff’s position is that we must go from a situation where children are jumping on rocks on a regular basis, all day every day according to the plaintiff’s mother, and presumably having fun doing it (otherwise why do it), to one where things that they can jump on have to be removed and we end up with a bland and featureless landscape.”
The large boulders were not in the judge’s opinion a hidden danger or an unusual danger and in the absence of special features there was nothing the defendant Council could do about them. The question remained whether the danger was one that it was reasonable for the law to require a defendant to obviate:
“The boulders may be allurement to children, they may form what [the expert witness] eloquently calls an ‘assault course’, but they are not alluring in the sense of enticing one into any hidden danger or any unusual danger. Children will jump on things, and the boulders have not been shown to represent any danger significantly greater than or fundamentally different from other structures likely to be jumped on, whether human or naturally occurring.
So my conclusion … is don’t think that the particular danger of injury from jumping from boulders of this nature is one that the law should properly impose a liability on an occupier to obviate. To clarify, that is essentially for two legal policy reasons, firstly the social cost of removing all such features from the landscape, including the loss of opportunities for unstructured children’s play, as here, and secondly the undue burden on occupiers if one extrapolates the logic to require the removal of all structures and features which could be theoretically the subject of similar accidents.”
In the context of occupiers liability legislation, judge indicated that the authors of McMahon and Binchy Law of Torts
“…validly point out that all of the s.4(2) factors are also relevant to negligence (p. 471), which makes all the more important the Supreme Court’s emphasis that that mustn’t distract from the fundamental question that reckless disregard involves a degree of carelessness worse than negligence. I should perhaps add that while McMahon & Binchy question whether what they call aimless ‘mooching’ by children really amounts to recreational use (p. 461), I don’t think there is a distinction. Children’s recreational use is recreational use, and aimless mooching is recreation par excellence. The learned authors also suggest that the concept of recreational use should be construed narrowly (p. 461), but there is no valid basis in the statutory text, context or intention for such an approach.”
In Finlay v Scoil Mhuire National School [2020] IEHC 697 the mother of a child in the school fell having lost footing going down a stairs outside the school. The claim was dismissed.
“The drawing of inferences or reaching conclusions in relation to the steps in quo by the analogical application of statutory regulations enacted to provide for the safe use of internal steps and stairs or steps and stairs providing immediate access to and egress from a building does not follow either as a matter of law or logic. Any such application must, in my judgment, be approached with great caution, particularly when regard is had to the objects of the Safety, Health and Welfare at Work Act, 2005 in general and the scope of parts K and M of the Control of Building Regulations, 1991 as amended, in particular. Given the comprehensive nature and purpose of the 2005 Act and the 1991 Regulations as amended, it seems to me reasonable to conclude that the absence of a requirement to rail external steps extraneous to a building is not the result of oversight.”
Cases Handrails
Restaurant owners and their architect who failed to provide a handrail were found liable to persons who stumbled on steps and were injured even though the rails not required by the building regulations
“The real problem, so far as the plaintiff was concerned, was the absence of a handrail. Had this been there, I am quite satisfied that even if the plaintiff had missed her first step, and indeed a handrail would have made that event much less likely in the first instance; the handrail would have confined her mishap to a harmless stumble and prevented it becoming a dangerous freefall resulting in the injury she suffered. I am quite satisfied that had there been a handrail at the steps, the plaintiff would not have suffered the injury she did.”
Regarding the negligence of the restaurateurs, O’Neill J.
“of opinion that anyone, lay or expert, who considered the relevant features of the location of the stairs, namely, in a busy city restaurant, in an ambiance where the lighting was relatively low, the rather dark colouring of the stairs, the absence of any clear markings on the nosings of the stairs, the normal noise, hubbub and conviviality that one would expect in a restaurant of this kind late at night, the fact that diners at that time of night would be enjoying themselves and may have consumed some alcohol, the constant movement around the restaurant of patrons and staff; these features would, I have no doubt, brought about a realisation there was a high level of risk that a diner late at night would miss their footing on the steps and stumble. Once a stumble occurred on these steps, there was nothing to prevent that stumble becoming a freefall as happened to the plaintiff.
Handrails are a common item of internal architecture and encountered in almost all places and buildings to which the public have access and where steps must be negotiated. In my opinion, it must have been readily foreseeable to the first and second named defendants, as experienced restaurateurs, that the absence of a handrail on these steps would result in someone having a bad fall resulting in serious injury.”
The architect denied negligence as it had had designed stairs to meet the requirements of the Building Regulations which did not then require a handrail.
The court indicated
“That, of course, is not the end of the matter. In this location, in addition to the other features mentioned earlier, there is a low wall i.e. at foot level one side, and on the other, a thin screen which would not afford any support to someone who had moved onto the steps in the event of a stumble because the edge of the screen would be almost certainly either out of reach altogether or very difficult to grasp in order to prevent or control a stumble …any person, lay or expert, giving due consideration to all of these features of the location could not but realise the dangers posed by the absence of a handrail.
In McDonald v Frossway [2012] IEHC 440 restaurant owners and their architect failed to provide a handrail were found liable to persons who stumble on steps and was injured when held liable even though the rails were not required by the building regulations
O’Neill J.
The real problem, so far as the plaintiff was concerned, was the absence of a handrail. Had this been there, I am quite satisfied that even if the plaintiff had missed her first step, and indeed a handrail would have made that event much less likely in the first instance; the handrail would have confined her mishap to a harmless stumble and prevented it becoming a dangerous freefall resulting in the injury she suffered. I am quite satisfied that had there been a handrail at the steps, the plaintiff would not have suffered the injury she did.”
The judge was
“of opinion that anyone, lay or expert, who considered the relevant features of the location of the stairs, namely, in a busy city restaurant, in an ambiance where the lighting was relatively low, the rather dark colouring of the stairs, the absence of any clear markings on the nosings of the stairs, the normal noise, hubbub and conviviality that one would expect in a restaurant of this kind late at night, the fact that diners at that time of night would be enjoying themselves and may have consumed some alcohol, the constant movement around the restaurant of patrons and staff; these features would, I have no doubt, brought about a realisation there was a high level of risk that a diner late at night would miss their footing on the steps and stumble. Once a stumble occurred on these steps, there was nothing to prevent that stumble becoming a freefall as happened to the plaintiff.
Glass Door
In Newman v Cogan [2017] IECA 176, the plaintiff a visitor at a farm, lost an eye when a glass panel in a door was shattered explosively when leant on . A shard entered her eye. The defendant farmer, had installed the glass himself.
“Mr Cogan Snr.’s duty of care as an occupier of the premises when he changed the glass in the door in question in 2000/2001 was to carry out that task with the level of care and skill to be expected of a reasonably competent tradesman. Whilst many a householder may consider himself or herself capable of performing this type of task, when they do so they assume a duty to all who might subsequently be affected by their actions to carry out that task with the care and skill that is required to complete the task safely. If a visitor later suffers injury as a result of a danger caused by the act or omission of the occupier their liability for such a consequence will be judged against the standard of care that would have been expected of the reasonably competent tradesman asked to carry out the same task.”
“What is clear from the decision in Wells is that the Court of Appeal was intent on identifying an objective standard by which the care taken by an occupier carrying out a DIY job on their premises was to be considered in the event that an invitee was subsequently injured as a result of that work. Thus, it was that the Court settled on the standard of care to be expected of the reasonably competent workman or tradesman who would have the necessary skill to undertake the job in question. The difference between that standard and the standard of the professional who might have been retained for reward to carry out the repair, which the Court rejected as being too high, is not elaborated upon in the judgment. That said, I consider it likely that the Court was seeking to draw a distinction between the professional, who would be expected to be aware of the most up to date requirements, regulations and standards and to carry out the work required in accordance with best practice, and the reasonably competent tradesman who would not necessarily be expected to know of the most up to date requirements, regulations or standards, but who nonetheless would have the skill to carry out the job competently and safely, even if not necessarily in accordance with the prevailing best practice expected of trade professionals. Thus, it was that the Court created an objective test by which the standard of work to be expected of a householder who takes on DIY repairs of a relatively routine nature might be tested. It should be said that the Court also made clear that there were certain types of jobs where the householder might be considered negligent for merely embarking on the task, such as certain electrical works or the like, but the task undertaken by Mr Cooper did not fall within that category, it being of a type that was commonly carried out by householders.”
The Supreme Court refused to permit an appeal as it
“not agree that the judgment of the Court of Appeal has effected a significant change in the approach to the duty of care under s.3 of the 1995 Act. Although the applicants voice a concern that the judgment of Irvine J. could herald a regression to a law of occupiers’ liability based a series of common law rules developed in response to the circumstances of individual cases, it is entirely clear that the particular circumstances of a given case remain central to a court’s consideration of liability under s.3; the section itself refers to such duty ‘as is reasonable in all the circumstances’, meaning all the circumstances of the case. Wells v Cooper long pre-dates the 1995 Act and could be considered as part of the common law which was ‘codified’ by that Act, as the applicants put it. It is seldom the case that earlier case law cannot inform the interpretation of a subsequent Act, particularly where the Act purports to be a codification of the common law position. What the Court of Appeal has done is not to ‘gloss’ s.3 or introduce a new test, but rather to apply that broadly-framed section to the facts of this case by reference to a foreign judgment which was considered to be ‘persuasive authority’. Such was an entirely appropriate course for the Court to follow. Simply interpreting the section by reference to a persuasive judgment from the UK cannot amount to a ‘frustration of the project of codification’ which underlay the drafting of the 1995 Act. It therefore cannot be said that any new issue of law arises on this application.”
Alcohol
In Deehan v Loughlinstown Inns Ltd t/a The Lough Inn [2014] IEHC 182 the plaintiff who had consumed a certain amount of alcohol during an evening event in a public house was injured when several people jumped to catch a spot prize whihch was thrown.
“First, the duty of a pub operator is to take all reasonable steps to safeguard patrons against risks and dangers that are foreseeable. Second, a pub operator is not required to guard against improbable or unlikely happenings. Third, the commercial and practical feasibility of such safeguards as might be taken by a pub operator is relevant to consideration of whether those safeguards ought to be taken. Fourth, there are dangers that reasonable people expect to encounter, in respect of which they do not expect to be guarded against, and for which they ought not to expect compensation. Fifth, provided a pub operator uses reasonable care and skill to make premises fit for purpose and to operate competitions without risk to attendees, it may be possible to infer a contractual obligation whereby attendees undertake to take reasonable care for their own safety and to accept the dangers inherent to the entertainment.”
“a person who freely elects to go to a pub, who freely elects to drink alcohol, who freely elects to engage in a party game and who freely elects to jump for a spot prize, can reasonably anticipate that she may fall, cannot reasonably expect that every part of the pub will be proofed so that there can be no injury occasioned if she does fall, and ought not to assume that she will be entitled to compensation when in fact she falls.”
References and Sources
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McMahon & Binchy Law of Torts 4ed 2013
McMahon & Binchy Case Book on the Law of Torts 3ed 2005
Connolly Tort Nutshell 2ed 2009
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Fahey Irish Tort Legislation 2015
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Lunney, M. and K. Oliphant Tort law: text and materials. 5ed 2013
Peel, Edwin, Goudcamp, James Winfield and Jolowicz on tort 19 ed 2014
Horsey, K. and E. Rackley Tort law. 6ed edition 2019
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Giliker, P. Tort 5ed 2014
McBride, N.J. and R. Bagshaw Tort law 6ed 2018
Steele, J. Tort law: text, cases and materials 4ed 2017
O’Sullivan, J., J. Morgan, S. Tofaris, M. Matthews and D. Howarth Hepple and Matthews’ tort: cases and materials 7ed 2015
Horsey, H. and E. Rackley Kidner’s casebook on torts 13ed 2015
Clerk & Lindsell on Torts 22ed 2019
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