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Jul 1, 2017

Ont. Super. Ct. finds defendant dog owner strictly liable for dog bite and that the then minor plaintiff was not contributorily negligent for her damages

Author Michael S. Teitelbaum

In Moretto v. Nicolini-Femia, Ontario Superior Court Justice Shaughnessy found the defendant strictly liable under s. 2(1) of the Dog Owner’s Liability Act for her dog biting the plaintiff', which resulted in scarring to the plaintiff's face, and that there was no contributory negligence on the part of the plaintiff.

General damages were assessed at a total of $45,000, with $40,000 for the physical injury and scarring, and $5,000 for the psychological component. His Honour noted that the psychological injury claim was contentious. He held there was a psychological injury which was an expected sequelae from a dog bite incident, but "the dog bite incident was not the most significant precipitating event for all her psychological complaints".

And, His Honour found that the plaintiff did not prove her economic claim for loss of competitive advantage. The plaintiff sought to lead evidence from her plastic surgeon on this issue and, exercising his gatekeeper function, Justice Shaughnessy found that the doctor was not qualified to give this opinion evidence as the proposed evidence did not meet the Mohan threshold requirements for admissibility. Further, he found that the study the doctor referenced as the basis for his opinion was not proved to be reliable. In addition, he found that "the loss of competitive advantage also fails, from my observation, (using the language in Bopari v Bopari Estate supra) that the plaintiff’s facial scar 'is simply not that distracting to an objective viewer, especially when viewed in the overall context of [her] quite pleasant appearance'".

His Honour noted that the plaintiff, who was 15 years of age at the time of the November 2011 incident, was attending the birthday party of the defendant's daughter. The plaintiff, who was watching T.V. and eating pizza, got up from the couch she was sitting on and approached the dog, which was resting on a nearby loveseat. The dog bit the plaintiff’s left cheek, lacerating the skin, which resulted in the plaintiff attending the emergency department of a hospital and having 10 sutures applied to close the wound. 

The defendant argued that there was contributory negligence on the part of the plaintiff, and sought to apply s. 2(3) of the Act which provides for the reduction of the damages awarded in proportion to the degree, if any, to which the fault or negligence of the plaintiff caused or contributed to the damages.

The defendant submitted that the plaintiff was "an 'impulsive and hyperactive 15 year old' who continued to pester the dog despite being warned to stop on several occasions and that her failure to let a sleeping dog lie, resulted in her sustaining an injury to her left cheek". 

The plaintiff testified that when she was in Grade 7 at school she was diagnosed as having Attention-deficit/hyperactivity disorder (ADHD). She was in Grade 10 when the dog bite incident occurred. She acknowledged that with her condition of ADHD she found it difficult to focus, was easily distracted, hyperactive and impulsive in words and actions. She was placed on different medications by her doctors to treat her ADHD and there were side effects including headaches, fidgeting, hot flushes and her heart racing. There were periods of time when she decided not to take her medications which required intervention by her parents.

On the contributory negligence issue, His Honour stated in part:

[31] The defense has spent considerable time in written argument referencing a “Developmental Questionnaire” from York Central Hospital dated June 25, 2011 which document had been prepared for a Dr. Varley who was seeing the plaintiff relative to her medications related to her ADHD. The questionnaire was prepared/answered by the plaintiff’s mother. There is also reference to a letter sent to the family doctor by Dr. Varley dated November 3, 2011 again found in the York County Hospital Records. The defense argument is that because the plaintiff was being treated by physicians for ADHD and was prescribed several medications which did not always address her symptoms, caused side effects and in some circumstances she was non-compliant in taking the medication equates to her being “inappropriate and impulsive” with her interaction with the dog. I find that this argument is neither reasonable nor logical. It is also not helpful or determinative of the issue of contributory negligence. Effectively, the defense suggestion is tantamount to propensity reasoning, namely because the plaintiff has issues related to ADHD, a learning disability, and parent/teenage disputes, her evidence is not credible or reliable and that she had a propensity and personality which caused her to be inappropriate and impulsive with the dog. This type of reasoning ignores the facts which the court should analyze in relation to contributory negligence. Just because the plaintiff, as a teenager had underlying issues in her life and committed petty theft does not mean that she is less credible or her evidence is less reliable. Further, while the plaintiff testified that she would lie to her parents, it was in relation to school assignments and marks. There is no evidence that demonstrates that for all purposes she was not truthful or her evidence was unreliable. Her father, Joseph Moretto, also testified that Natalie’s lying was only in relation to her academic work. He acknowledged that he and his wife had high expectations when it came to school work and Natalie had a learning disability which they came to realize meant that she required extra assistance and learning techniques at school. I have previously at paragraph 9, outlined the social/emotional issues which the plaintiff provided testimony.

[32] Similarly, I do not accept the notes and records of Mariella Pace, a social worker filed as exhibit 16 are determinative of the reliability or credibility of the plaintiff. The plaintiff was seeing Ms. Pace for a myriad of personal issues subsequent to and unrelated to the dog bite incident.

[33] I find that the evidence that is relevant to the issue of contributory negligence is the conduct of the plaintiff in the moments leading up to the dog biting her face. Accordingly, I do not see any relevance to the evidence that the defence seeks to rely on wherein Natalie Moretto attended some 6-7 months prior to November 25, 2011 and attempted to mount the back of the dog and referencing it as a horse. Unlike the decision in Kent v Laverdiere 2011 ONSC 5411 (para. 23-31 and para. 84-96) there is no evidence here of experts on canine behaviour. Therefore, I do not see how the evidence related to the prior incident is relevant. In any event, any interaction between the plaintiff and the dog on that earlier occasion, as the defendant testified, was brief as she directed her son to take the dog to another room so that it would not be a distraction to the girls in getting their homework project completed.

[34] I have considered the evidence of the witnesses, summarized above, relating to the events at the birthday party. I accept and find as a fact that the plaintiff came to the defendant’s home shortly after 6:00 pm. I find that the plaintiff was a loud, outgoing, perhaps somewhat immature teenager, who by all appearances liked the dog and that she did in fact follow the dog around petting it and she lay beside the dog earlier in the evening. However, I do not accept that the dog was constantly being “pestered” as Samantha Femia, Emily Connors and the defendant suggested in their testimony. The defendant testified that she went to bed at 9:00 pm. The evidence is that the dog bite incident occurred at approximately 10:30 pm. I particularly took note of Emily Connors testimony that the dog was lying on the love seat for ½ to 1 hour sleeping before Natalie got up and approached the dog.

[35] The evidence of all the witnesses is that the dog had not shown aggressive behavior towards Natalie Moretto that day. The evidence is that the plaintiff was attempting to pet the dog at the time of the incident, as she had done previously in the evening. The dog was a family pet and accordingly it would be safe for the plaintiff to assume that the dog was friendly and that she was in a safe environment. There is conflicting evidence whether the dog was awake when Natalie Moretto crouched by the love seat and attempted or did pet the dog. The position of the plaintiff prevented the other witnesses from seeing whether the dog’s eyes were opened or closed at the time of the bite and indeed they did not actually see the bite. I accept Natalie Moretto’s testimony that the dog was awake as she crouched down to pet it. In all other respects, the evidence of the witnesses corroborates the plaintiff as it pertains to how the incident occurred.

[36] Accordingly, I find that there was no pestering or provoking of the dog that lead to it lunging and biting the plaintiff’s face. If Natalie Moretto was “pestering” the dog as the defendant and Samantha Femia testified, it would reasonably follow that the dog would be taken upstairs or elsewhere in the home similar to the first visit of the plaintiff to the defendant’s home. This did not happen. I find that the mere touching of the dog by means of a friendly pat of the hand does not constitute contributory negligence to warrant a reduction of damages under section 2(3) of the Dog Owner’s Liability Act. The plaintiff had a demonstrated affection for the dog. She did not torment the dog by poking it or pulling its tale or any other such actions which could be characterized as “pestering” the dog. I find that the plaintiff only demonstrated reasonable affection for the dog, by petting it at different times throughout the evening and was about to do so when the dog bit her on the face. The defendant has not discharged its onus to prove contributory negligence on a balance of probabilities.

On the matter of damages, His Honour stated in part:

[37] Following the dog bite incident, the plaintiff’s mother came to the defendant’s home and transported her to the emergency room of a local hospital. She is given a tetanus injection and 10 sutures to close the wound to the face. The evidence of Dr. Walter Peters and Dr. S. Krajden at trial is that the plaintiff sustained a 2.1cm. “stellate scar” with a raised flap over a stamp-sized area adjacent to the left nasal labial fold (the laugh line) on the plaintiff’s face. There are three separate limbs of the scar, which is quite noticeable due to hypopigmentation and pin cushioning. As the defense states in its written argument (para. 76), the scar is likely permanent and neither surgical treatment nor laser treatment is certain to improve it.

...

[39] Dr. Bertucci referred the plaintiff to a plastic surgeon, Dr. Walter Peters on November 11, 2013. Dr. Peters testified at trial. On this consultation (two years post injury) Dr. Peters found that the plaintiff was left with significant scarring. He testified that this scarring was an oblique “stamp sized” area crossing the left nasal labial line together with an area of scarring extending upwards. He testified that the stamp size area tends to stand out from the surrounding skin and was quite noticeable. When the plaintiff smiled the area of scarring becomes even more noticeable. Dr. Peters explained that this occurs because the scarred area of the skin is not as mobile or loose as the surrounding skin. This causes the skin to bunch up in the nasal labial area. In addition both Dr. Peters and Dr. Krajden testified that the scar demonstrated what is described as “pin cushioning effect” which is caused by the lack of a good blood supply through vessels to the wound during the healing process. This causes a buildup of lymphatic fluid under the scar tissue and the resulting “pin cushioning effect.”
...

[41] Dr. Peters testified that although he had proposed the elliptical excision of the scar as a possible treatment, this surgery would result in a scar that would be double the length of the scar the plaintiff currently has in place. In other words, the surgery, if successful would not eliminate a scar on the plaintiff’s face. Indeed both Dr. Krajden’s and Dr. Peters’ testimony was that surgery was not guaranteed to make the scar area resolved.

...
[45] Based on my observations of the plaintiff as she testified, I agree with Dr. Krajden’s evidence that the facial scarring is immediately noticeable at a conversational level of 2-3 feet away and is more noticeable on smiling. Certainly make-up does camouflage the scar to some extent.

[46] Dr. Krajden testified that laser treatments might prove beneficial in order to improve the overall cosmesis and texture of the left facial scarring however only to the extent of a modest 25-50 % improvement overall. These treatments are not covered by OHIP and he testified that the approximate cost for the treatments is $10,000. 

[47] The testimony of the plaintiff is that she is still considering the option of surgery. She is very self-conscious about the scarring. The incident happened when she was 15 years of age. She testified that she “felt ugly” and she “felt terrible about it [the scarring].” She described how at school she was ridiculed, teased by other classmates and students. She testified that the bullying reached the point that she did not want to go to school. After the extended period of healing she wore make-up to try to hide the scar. She nevertheless felt people she encountered were staring at her whether at school or in her part-time jobs as a waitress and server. She testified how her low self-esteem and confidence became worse after the dog bite and her belief that she was ugly in the eyes of others. It is fair to assume that this plaintiff like many young teenagers and young people put a high degree of importance in their appearance to gain social acceptance. Therefore it is reasonable to conclude that the plaintiff’s upset and some loss of self-esteem and disdain for her looks are understandable in all the circumstances.

Psychological Injury

[48] This claim of injury is the most contentious at trial.

[49] The position of the plaintiff is that the dog bite had a significant emotional and social impact on Natalie Moretto’s life. At the same time, in written argument the plaintiff acknowledges that “Natalie was going through a lot at the time of the dog bite. She was dealing with what she considered to be an overbearing mother, difficulties in school and difficulties with her boyfriend.”

[50] The defense position is that there is no expert testimony of any perceived psychological injury. Further, it is submitted that the evidence of the plaintiff is exaggerated, conflicting and contradictory.

[51] There was evidence of the plaintiff that she has developed a phobia of dogs following this dog bite incident. There is the testimony of Frances Moretto and Diane Natale that the plaintiff insists that their dogs be restrained and/or moved to another room when she comes to visit.

[52] The testimony of the plaintiff was that the scar impacted her self-esteem which made her insecure about her appearance including having her picture taken. She testified that her loss of self-esteem caused her to continue being involved in an abusive relationship with a boyfriend and continues to make it difficult for her to interact with others in social situations. However, there was evidence at trial that the plaintiff routinely posted photographs of herself to various social media platforms, including Facebook, Twitter and Instagram. Several of these photographs are filed as exhibits. The plaintiff claimed the photographs she posts online were taken deliberately out of focus or modified with a phone application meant to diminish imperfections. However, the defendant’s cousin Frances Moretto took photographs of the plaintiff which were taken from close range, with proper focus but also with some modification. Frances Moretto testified that she is a make-up artist who was using the plaintiff’s photos as advertising for her business.

[53] The plaintiff testified that because of her low self-esteem and confidence she remained in a very abusive relationship with a boyfriend. She stated that she continued in the relationship because she did not feel she was entitled to anything better. It is her testimony that the dog bite was, the “last straw” in her life and it combined with all her other difficulties resulted in her inflicting cuts to her body in particular to her stomach. She did not disclose the “cutting” to her parents until much later in time after the “cutting” had stopped. She testified that she did not disclose the cutting to the counselor or psychiatrist she was seeing at the relevant time. She had ceased the “cutting” approximately 1 ½ to 2 years before this trial.

[54] The plaintiff was seeing her boyfriend before the dog bite and she describes him as manipulative. She states that she broke up and got back together with her boyfriend on several occasions in the years following the incident. The boyfriend is no longer in the plaintiff’s life.

[55] The plaintiff testified that she experienced nightmares and flashbacks of the incidents at night time causing her to wake-up crying for a period of time following the incident. This is not an ongoing issue.

[56] I accept that the plaintiff had nightmares for some period of time and I accept that she developed a phobia towards dogs as a result of this incident. However, the evidence is substantial, including the testimony of the plaintiff, that she was experiencing a number of serious personal issues both before and after the dog bite incident. I heard reference to the plaintiff seeing a Dr. Salmon for the purpose of providing an expert opinion on behalf of the plaintiff relating to psychological injury. However, Dr. Salmon did not testify nor was his report filed. I cannot draw any inferences or conclusions what his opinion might have been. I am left only with the evidence of the plaintiff and to a limited extent her father on the issue of psychological injury.

[57] In written argument (para. 52), plaintiff’s counsel certainly delineates the issue before the court as follows:

It is acknowledged that Natalie [Moretto] had some mental health issues before the dog bite and they continued after the dog bite as well. She had issues with her parents, with her abusive relationship and at times issues with peers. These are common issues that young girls going through adolescence encounter.

[58] However plaintiff’s counsel submits that these issues also made her a “vulnerable plaintiff”. It is submitted that these other issues in her life made it more difficult for the plaintiff to cope with the emotional and social impact the facial scar had on her life.

[59] The plaintiff was seeing a Dr. Vardy before the dog bite about the myriad of issues in her life. This court does not have the medical opinion of this psychiatrist. The plaintiff was seen and assessed by a Dr. Salmon but again the Court does not have the opinion of this psychiatrist. Likewise there is no opinion from the counselor Mariella Pace whom the plaintiff commenced seeing after the dog bite incident.

[60] While I am satisfied that there is some psychological sequelae resulting from the dog bite incident, including some period of nightmares and flashbacks, a phobia of dogs and certainly embarrassment and some loss of self- esteem and confidence as a result of the actions and comments of peers concerning the scar nevertheless, without further and better evidence, I am unable to conclude that the incident caused the plaintiff significant psychological injury as alleged. I find that the scarring of her face was a source of ongoing concern to her, nevertheless the other issues in her life were obviously of greater concern and these were not exacerbated to any considerable extent by the dog bite scar. On the evidence of the plaintiff, her transition to a community college from high school has been a happy event in her life where she met and engaged in new friendships.

[61] I find that the plaintiff embellished her testimony to point to the dog bite as materially affecting her emotional issues. She clearly had a number of psychological issues in her life before and after the dog bite. I am not able to find any reliable evidence supporting the plaintiff’s claim that the dog bite was the “last straw” that led to such unfortunate behavior as self –mutilation. I find that I am not satisfied that the plaintiff has met its burden to provide evidence on a balance of probabilities in relation to the cause or causes of a significant psychological injury caused by the dog bite incident. I reiterate however, that there is some component of psychological injury, which I have delineated herein, which I accept is reasonable and an expected sequelae from a dog bite incident. However, the dog bite incident was not the most significant precipitating event for all her psychological complaints.

Assessment of General Damages

[62] Both counsel provided a number of cases supporting their respective positions on general damages. While I have reviewed the various cases submitted, I did not find them particularly useful as the assessment of damages were very much case specific.

[63] After reviewing all the evidence, including the findings, diagnosis and prognosis of Dr. Peters and Dr. Krajden, I find that a reasonable assessment of the General Damages for the physical injury to the plaintiff including pain and suffering, loss of enjoyment of life and permanent scarring to the left nasal labial fold of the cheek of her face is $ 40,000.

[64] In addition thereto, I have also assessed General Damages for the psychological component of the dog bite incident, including nightmares, flashbacks, reduced self –esteem and confidence, a phobia towards dogs and personal embarrassment in the sum of $ 5,000.

[65] Accordingly, the total award for General Damages is $ 45,000.

Economic Loss---Loss of Competitive Advantage

[66] The plaintiff advances a claim that she has lost a competitive advantage in the workplace as a result of suffering a facial scarring. It is argued that the plaintiff has lost a “capital asset” by reason of the scarring and cites the decisions in Anderson v Miner [1999] B.C.J. No.4 (BCCA) and Bopari v Bopari Estate, 2014 BCSC 1539 (BCSC) in support of this position. The British Columbia Court of Appeal in Anderson v Miner listed criteria relevant to the consideration and the valuation of the loss from impaired capacity to earn income as follows:

(1) Whether the plaintiff was rendered less capable overall from earning income from all types of employment;

(2) Whether the plaintiff is less marketable or attractive as an employee to potential employers;

(3) Whether the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to her had she not been injured; and

(4) Whether the plaintiff is less valuable to herself as a person capable of earning income in a competitive labour market.

[67] I note that the court in the Bopari v Bopari Estate found that the risk of a loss of competitive advantage was quite low as the plaintiff’s facial scarring “is simply not that distracting to an objective viewer, especially when viewed in the overall context of his quite pleasant appearance.” In Bopari, the plaintiff had not undergone any psychological treatment for his lack of self-confidence. While the court accepted the plaintiff’s evidence that he felt socially inhibited and he believed that people were looking at his scar, it also found that he was still making choices in accordance with his interests and aptitude and was not being deterred by the prospect of social interaction in future career endeavours. 

[68] The plaintiff’s evidence is that she already has lost part-time employment at Splashworks at Canada’s Wonderland. She testified that she applied there twice and was interviewed for the job. It was her testimony that she had all the qualifications for the job but she did not get hired perhaps because of the way she looked. She acknowledged that this is based only on her perception.

[69] The plaintiff was working part-time at a golf course when the dog bite incident occurred and the evidence establishes that she continued to work at the golf course as a waitress and then a server at banquet functions at the same facility. The plaintiff testified that she changed her job from a waitress to a banquet server because the lighting in the banquet facility was dimmer and her exposure to individual guests was limited in being a server rather than a waitress and this avoided embarrassment for her and her perception that patrons were staring at her scar.

[70] At trial, the plaintiff testified that she graduated from high school on time and commenced the Child and Youth Worker program at Seneca College. However, she apparently transitioned into the Social Work program this past academic year.

[71] The plaintiff filed as exhibit # 17, the economic loss report of Brad Borkwood, CPA, CA, CBV of Bluepoint Valuations. Mr. Borkwood was then produced for cross-examination.

[72] The evidence advanced by the plaintiff at trial is that the claim for loss of competitive advantage as set out in the economic loss report is based on the assumption that the plaintiff will sustain a 10% loss of competitive advantage from the point that she enters the workforce to the point that she retires (age 65). Mr. Borkwood also premised the report on the assumption that the plaintiff would pursue a career as a child and youth worker. He provided the opinion that the annual loss would be $ 3,350. Factoring in the usual contingencies and an employment entry date of January 2021, Mr. Borkwood calculated the present value of the plaintiff’s future economic losses at 
$ 99,500.

[73] A preliminary comment about a self-evident component of Mr. Borkwood’s evidence is that the basic assumption that the plaintiff would commence employment as a child and youth worker is no longer current, as the plaintiff testified that she transitioned to the social work program. Mr. Borkwood, without objection, was permitted to testify that the average salary of a person with a social work college certificate would earn more money than a person with a child and social work certificate.

[74] However, the far more significant flaw in the evidence of Brad Borkwood is that he utilized in his report the “medical report, prepared by Dr. S. Krajden, Plastic and Reconstructive Surgeon at William Osler Health Centre dated July 3, 2014.”

[75] To put this matter into context, I will briefly outline the difficulty with the Krajden medical report. Dr. Krajden in his report detailed his findings and prognosis based on his assessment of the plaintiff on June 24, 2014. There is no concern with the findings, diagnosis and prognosis of Dr. Krajden which he is quite qualified to provide to the court. However, it was proposed that he give opinion evidence which related to the claim for loss of competitive advantage. More particularly, he made reference to studies he read in papers which were reviews of physical attractiveness influencing heterosexual dating, peer acceptance, teacher behaviour, attitude change, employment interviews and jury decisions. Dr. Krajden then proposed to give the opinion that scarring may affect Ms. Moretto in a variety of aspects of her life “including: competitive disadvantage at the workplace…” His report went on to state that facial disfigurement can potentially impact an individual’s long term earning potential. He referenced an article in The Journal of Economics titled “Estimating Economic Loss for a Facially Disfigured Minor: A Case Study ---July 1993) as delineating this loss. This article that he relied upon made reference to a chart wherein The Veteran’s Administration of the United States had a chart prepared to give a quantification percentage to inter alia facial scarring and disfigurement. Dr. Krajden proceeded to use this chart to classify the plaintiff as having a facial scarring that is “moderately disfiguring” due to its position on the face and pin cushioning. He opined that “accordingly to this chart, this would place Ms. Moretto at a 10% economic disadvantage in the workplace”. The ruling of this court at the qualification stage was that Dr. Krajden was not qualified to give this opinion evidence. I do not see any merit in repeating the reasons I gave orally restricting Dr. Krajden from giving evidence for which he was not qualified and which was not reliable in relation to the loss of competitive advantage. Suffice to say here that the proposed evidence did not meet the threshold requirements for admissibility as established in R. v. Mohan [1994] 2 SCR 9. I also exercised my discretionary gatekeeper function and determined that Dr. Krajden was not qualified to opine on the issue and that the study he referenced as the basis for his opinion was not proved to be reliable.

[76] This then brings me back to the fundamental flaw in Mr. Borkwood’s economic loss report. A key assumption he made relies on the portion of the report of Dr. Krajden which this court ruled inadmissible. As a result, the fundamental assumption that the plaintiff will sustain a 10% loss of economic advantage over her working life is not proven even on a reasonable chance of such loss or damage occurring in the future; (Shrump v Koot (1977) 82 D.L.R. (3d) 553; [1977] OJ No. 2502). However, I do not leave this issue with just one reason for my determination. I find that the loss of competitive advantage also fails, from my observation, (using the language in Bopari v Bopari Estate supra) that the plaintiff’s facial scar “is simply not that distracting to an objective viewer, especially when viewed in the overall context of [her] quite pleasant appearance.” While I accept that the plaintiff felt socially inhibited in high school from the scarring, which had some effect on her self-esteem, nevertheless, she has demonstrated as a student, in a community college setting, that she is still making choices in accordance with her interests and aptitude and is not being deterred by the prospect of social interaction in relation to her future career endeavours.

[77] I therefore find, based on the evidence of the plaintiff and the lack of any other evidence, that the plaintiff was not rendered less capable overall from earning an income from all types of employment. I further find that there is no evidence that the plaintiff is less marketable or attractive as an employee to potential employers. I do not accept the plaintiff’s evidence that she did not qualify for the jobs at Splashworks at Canada’s Wonderland because of her looks. Her opinion is based simply on her perception or belief. In any event, she has been able to secure part-time employment as a waitress and server at a golf club. I am satisfied that any loss of self- esteem in the past has substantially lessened over time and any remaining loss of self-esteem is not an impediment that is likely to make her feel less valuable as a person capable of earning an income in a competitive labour market.

[78] Accordingly, for these reasons, I find that there is no compensable loss of competitive advantage proven by the plaintiff.

Keywords

  • psychological injury
  • scarring
  • loss of competitive advantage
  • general damages
  • Dog Owners' Liability Act
  • dog owner's liability

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