SPORTS LIABILITY. by: A. Jarvis Scott and Jennifer M. Malchuk Hughes Amys LLP

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1 SPORTS LIABILITY by: A. Jarvis Scott and Jennifer M. Malchuk Hughes Amys LLP A) INTRODUCTION This paper was inspired by the following excerpt from Thomson s World Insurance News, Feb. 16, 2004, under the heading Lawyers Seeing Sports, Recreation and Leisure Activities as New Target : The future of sports and leisure activities in Ontario is in jeopardy if the government doesn t pass tort reform, said broker Sheldon Rogers. The operations manager of Marketplace Insurance in St. Catharines has written to MPPs about it. He said lawsuits stemming from sports injuries are out of control. They are driving up insurance costs to the point companies will stop writing this type of business or coverage will become too expensive for leagues, facilities and organizations. The legal community is seeing sports, recreation and leisure activities as a new market to attack in Ontario, he told the politicians. He added: People are refusing to volunteer or even help out, as they are concerned about being sued personally. Years ago, a person injured while playing a sport understood that was part of the game. Now, they sue the other player involved, the referee, the league and the facility. If the handful of foreign insurers still specializing in this type of business in Canada decide to pull out of the market, 67,000 not-for-profit organizations are at risk. He wants changes limiting the right to sue and amounts for which people can sue. This would include changes to the Occupiers Liability Act.

2 -2- One of the organizers of this seminar read this and thought it might be of interest. Our actual topic as described is Sports Liability with a rather broad description of personal injury actions against league organizers, coaches, referees, helmet manufacturers, ski hill operators, product liability issues, etc.. To do this topic justice would require a sabbatical and a contract to write a textbook. After being overwhelmed by the topic presented, we eventually decided to concentrate on a few sports that are near and dear to the hearts of lawyers, and in particular, Canadian lawyers - skiing, hockey and golf. In the context of reviewing the case law relating to these sports, common duties and defences applicable to all recreational endeavours will be discussed. B) LEGAL PRINCIPLES Claims will typically be based on one or more of the following causes of action: 1. A breach of the duty of care under the Occupiers Liability Act; 2. Negligence; or 3. Assault. It is unlikely that there will there be insurance coverage for claims arising from alleged assaults, due to the intentional act exclusion found in most policies, and therefore, these claims will rarely make it into the courtroom. In this paper, we will focus mainly on claims arising under the Occupiers Liability Act and general negligence law and comment on defences available.

3 -3- As a general proposition there is nothing particularly unique about the legal principles involved in the pursuit and defence of a sports related personal injury claim. The uniqueness arises only in the context of the facts giving rise to the claim in a particular sporting activity. C) COMMON DEFENCES 1. No breach of the Occupiers Liability Act - prove it defence The owner or occupier of recreational premises may be found liable by virtue of being the owner or occupier of the premises where an accident took place. Section 3(1) of the Occupiers Liability Act provides that the occupier of a premises owes a duty to take such care as is reasonable to see that persons entering on the premises and the property brought on the premises by those persons are reasonably safe while they are on the premises. The Act s definition of premises is very broad. It includes both lands and structures. The Act provides that the duty of care is that which, in all circumstances of the case, is found to be reasonable. The Supreme Court of Canada has held in Waldick v. Malcolm, [1991] 2 S.C.R. 456, that the duty of care is a proactive one that involves taking reasonable steps to prevent injury. An owner of a recreational property owes its patrons a duty of care to ensure their safety while engaging in recreational activities on the property. It must be borne in mind that under the Act, one can be deemed to be an occupier by having: (a) physical possession of the premises; (b) responsibility

4 -4- for and control over the condition of the premises; or (c) control over persons allowed to enter the premises. Accordingly, a plaintiff may institute a claim against more than one defendant as an occupier. For a defendant to be found to be liable as an occupier, it must be proven that: (a) the defendant is an occupier (and therefore owes a duty of care); (b) the defendant breached the standard of care under the Act; (c) there is an unbroken causal link between the breach and the injury; and (d) the plaintiff suffered an injury. The most basic defence is to attack the factual foundation of (a) - (d). It is notable that s. 3(3) of the Occupiers Liability Act states that s. 3(1) applies except is so far as the occupier is free to, and does restrict, modify, or exclude the occupier s duty. This section allows the occupier to, among other things, make use of waivers/releases (see discussion of waivers below) to minimize its risk. Section 4(1) of the Occupiers Liability Act states that s. 3(1) does not apply in respect of risks willingly assumed by the person who enters onto the premises. In Waldick v. Malcolm, [1991] 2 S.C.R. 456, the Supreme Court of Canada held that this defence is essentially a codification of the common-law principle of voluntary assumption of risk, and requires that the plaintiff understood and waived both the physical and legal risks involved in the activity (see discussion of voluntary assumption of risk below). It is also arguable that s. 4(1) would also codify the concept of inherent risk (see discussion of inherent risk below).

5 -5-2. No negligence - prove it defence #2 An absolute bar to a plaintiff s recovery lies in proof that the defendant did not act negligently in any way. Simply defined by Fridman in the Law of Torts in Canada (2nd edition), negligence is a breach of a legal duty to take care, which results in damage (unintended by the defendant) to the plaintiff. It is measured by how a reasonably prudent person would have acted in similar circumstances. To establish liability, the plaintiff must show (a) that he/she was owed a duty of care by the defendant; (b) the defendant should have observed a particular standard of care in order to perform or fulfil that duty; (c) the defendant breached that standard of care by failing to fulfil or observe the relevant standard of care; (d) the breach caused damage or loss to the plaintiff; (e) such damage was not too remote a consequence of the breach so as to render the defendant not liable for its occurrence. Again, defending on the basis of a lack of proof of (a) - (e) is a common defence to negligence based sports liability claims. 3. Inherent Risk Inherent risk is a concept that is used often, but generally not clearly understood. It is often associated with the concept of voluntary assumption of risk. In some cases considering the concept

6 -6- of inherent risk, the analysis seems to be that inherent risk simply amounts to an argument that there was no negligence. The accident fell within a known risk associated with a sport. The common law doctrine of inherent risk was described in Murphy v. Steeplechase Amusement Co., [1929] 166 N.E. 173, as follows: One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary... The Supreme Court has described inherent risk as risk that is incidental to and inseparable from a sport (see Dixon v. City of Edmonton, [1924] S.C.R. 640). There is no duty to remove inherent risk. In our Rootes v. Shelton, [1967] 116 C.L.R. 383 (H.C. Aus.), a water skier was engaged in a crossover manoeuver with two other skiers. While momentarily blinded by spray, he ended up colliding with a stationary boat. The driver of the boat towing him had failed to stay clear of the stationary boat or to signal its presence to the plaintiff. The driver was found negligent for steering too close. The pilot had imposed an unnecessary degree of risk. The Australian Court stated that while running into a submerged obstruction that the driver could not see could amount to an inherent risk, waterskiers clearly did not expect to be towed directly into collision with a visible one.

7 -7-4. Voluntary Assumption of Risk Traditionally, the defence put forth in respect of a claim for injury arising from recreational activity was that the injury was a result of the assumption of the risk inherent in the sport. The concept of assumption of risk is based on the notion that certain activities have certain risks that one assumes by taking part in the activity in question, i.e. volenti non fit injuria. Volenti non fit injuria means he who consents cannot receive an injury. Where it was held that the plaintiff knowingly and voluntarily accepted the risk associated with the activity, volenti acted as a complete bar to recovery. There was no apportionment of liability available. A series of cases from the Supreme Court of Canada have dramatically narrowed the application of volenti. Now, for the defence to be successful, one must prove that the plaintiff freely and voluntarily encountered the risk with full knowledge of the nature and extent of the risk, and that the plaintiff expressly or impliedly agreed to absolve the defendant of all liability arising out of the activity (see Lehnert v. Stein, [1963] S.C.R. 38, p. 44; Dube v. Labar, [1986] S.C.R. 649; Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R. 1186).

8 -8-5. Waiver and Release (including Signage and Tickets) In the late 1980's and early 1990's, there was a series of cases out of the British Columbia Courts addressing the effectiveness of waiver and release provisions on signage, lift tickets and signed waiver and release contracts, which demonstrate that, in the right circumstances, claims could be effectively eliminated, even when injury results from a defendant s negligence or breach of the Occupiers Liability Act (these cases are discussed below). A waiver and release of liability is a contractual agreement between two parties, wherein one party agrees to release the other from liability in certain circumstances. To be effective, the release, waiver and or signage, must be carefully drafted to include a release of liability arising from negligence or breach of the Occupiers Liability Act or any other cause of action. Unless the releasing document, signage and for ticket wording is technically sufficient a defence on this basis will fail. A number of cases demonstrate that with proper notice, drafting and presentation, a written waiver or release may be upheld. There are also cases where ticket wording and signage will amount to a waiver of liability. If the plaintiff is not aware of the specific provisions of the exclusionary clause, he or she may be bound by them, if the defendant has made reasonable efforts to bring its existence to the plaintiff s attention. It is not the defendant s onus to force the plaintiff to read the exclusion. The onus is on

9 -9- the defendant to take reasonable steps to bring the existence of an exclusionary clause to the plaintiff s attention. Before leaving the topic of waiver and releases, some comment should be made with respect to their applicability to minors. Generally speaking contracts made by minors are unenforceable. A waiver signed by a parent on behalf of a minor does not make it enforceable. Many waivers and releases provide that a parent will indemnify the releasor with respect to any claims of the child. In Stevens et al. v. Howitt, [1969] 1 O.R. 761 (H.C.), the parental indemnity agreement was not enforced on the basis that it discouraged a parent from pursuing a minor s legal rights and was inconsistent with public policy. SUMMARY The above noted defences will be applicable to all types of sports and recreation claims. We will focus on highlighting the use of these defences in respect to the specific sporting activities to be covered in this paper - skiing, golf and hockey.

10 -10- SKIING (and SNOWBOARDING) The ownership and operation of a ski resort can expose an owner to liability for injuries resulting from negligence in the provision of services or from a breach of the duty of care found in the Occupiers Liability Act. This risks and exposures are significant. The injuries to those who take part in skiing are often severe and the occurrence of mishaps is frequent. Owners and operators of ski resorts in Ontario have taken steps to reduce or eliminate claims, through the extensive use of waivers/releases, signage and conditions printed on tickets. (A) Signed Waivers The leading case in the discussion of whether a waiver effectively protects an occupier or sports organizer from liability is the Supreme Court of Canada s decision in Crocker v. Sundance Northwest Resorts Ltd., [1988] 1 S.C.R In Crocker, the defendant ski resort held a competition wherein two person teams raced down a mogulled portion of a steep hill in oversized inner tubes. In his first heat, the plaintiff was ejected from the tube and suffered a cut above his eye. He was obviously aware of the potential physical risks of competing. However, he wanted to compete in a second heat. By that point in time, the plaintiff was visibly intoxicated. The defendant s representatives suggested to the plaintiff that he shouldn t compete due to his level of intoxication. He was adamant that he wished to compete, and was not stopped by the defendant. During the second heat, the plaintiff was ejected from the tube once again, and suffered a neck injury that rendered him a quadriplegic. Prior to competing, the plaintiff signed a waiver of liability.

11 -11- The Court found that the defendant could not rely on the terms of the waiver. While the plaintiff had accepted the physical risk associated with the activity, there was no evidence that he had accepted the legal risk. The exclusionary conditions contained in the waiver had not been drawn to the plaintiff s attention. It was contained on an entry form. The plaintiff signed it in a bar at the resort. It was his evidence that he thought he was signing only an entry form. He had not waived his legal rights by merely accepting the risk of injury from the race. Additionally, the Court found that in holding a sporting competition for profit, the defendant owed the plaintiff a duty of care. The defendant failed to meet the standard of care owed to the plaintiff by allowing him to compete in a highly dangerous sporting activity when he was visibly intoxicated. In Karroll v. Silver Star Mountain (1988), 33 B.C.L.R. (2d) 160 (B.C.S.C.), the plaintiff suffered a broken leg while participating in a downhill skiing competition. She collided with another skier during the downhill race. The plaintiff argued that the defendant ski resort was negligent in failing to ensure that the course was clear prior to permitting her to descend. The plaintiff had signed a waiver prior to participating in the race. The release acknowledged the risk of injury, and released the defendant from liability, even if it arose from its own negligence. The plaintiff had competed in the same race during the previous four years. While executing the waiver, the plaintiff had explained to her friend that they were required to sign releases precluding them from suing the ski hill operator if they fell and hurt themselves of their own accord. Despite this conversation, the plaintiff maintained that she should not be bound by the terms of the waiver, as she

12 -12- did not read the form, and had not been given a reasonable opportunity to read and understand the form. The Court found that the document was short and easy to understand. The plaintiff acknowledged that it could have been read in one to two minutes. The Court found that the defendant took reasonable steps to bring the exclusion to the attention of the plaintiff, and were therefore entitled to rely on the provisions of the waiver. The plaintiff s action was dismissed. In Ocsko v. Cypress Bowl Recreation (1992), 74 B.C.L.R. (2d) 73 (B.C.C.A.), the plaintiff suffered injury when his skis came into contact with some rocks along the boundary of a ski run. The plaintiff was an experienced skier and ski patroller. He was aware of the types of conditions that could exist along the boundary of a run in December (including the presence of rocks). The plaintiff had purchased a season s ski pass, and as part of the process to obtain same, he signed a waiver, but did not read it. It was found that the plaintiff was not under any pressure to sign the waiver, nor was he rushed. There was nothing that prevented the plaintiff from reading the release before he signed it. Accordingly, the defendant was allowed to rely on the conditions contained in the waiver, and the plaintiff s action was dismissed. In Blomberg v. Beachcomb Skiing Enterprises Ltd. Partnership (1992), 64 B.C.L.R. (2d) 51 (B.C.S.C.), the plaintiff sustained injury when he was knocked down by another skier, and fell into a snow fence. The plaintiff was an experienced skier who considered himself to be an expert. Again,

13 -13- as part of the process to obtain a season s pass, the plaintiff signed a waiver. The waiver released the defendant from liability for all claims, including ones arising as a result of its own negligence. As an experienced skier, the plaintiff had signed similar waivers in the past. He claimed that he was told to sign the waiver attached to the pass, but that he had not read the contents. The Court found that the defendant took reasonable steps to bring the waiver to the plaintiff s attention, both on the day he signed and prior to that. A brochure was sent to past season s ticket holders which set out the contents of the waiver and advised that it would have to be signed before a pass would be provided. The court found that the plaintiff had plenty of time to read the waiver, but chose not to do so. It was also determined that the plaintiff was well aware of what the waiver form was. In Schuster v. Blackcomb Skiing Enterprises Ltd. Partnership, [1994] B.C.J. No (B.C.S.C.), the plaintiff was injured while taking part in a ski program offered bythe defendant. Her skis became entangled in a partly covered nylon fence. She fell on her back and fractured a vertebra. The plaintiff had participated in the same program two previous times. The plaintiff had signed a waiver releasing the defendant from liability for all claims, including ones arising from its own negligence, but she claimed not to have read the contents. She did read the heading that was set out in bold type. She understood that she was signing a release of liability and understood what that meant. She admitted that she had the opportunity to read the entire document, but did not do so.

14 -14- The Court noted that in cases dealing with waivers, the dominant question is nearly always one of adequate notice. The Court found that the defendant took adequate steps to bring the waiver to the attention of the plaintiff. Accordingly, the defendant was entitled to rely upon the terms of the waiver, and the action was dismissed. In Mayer v. Big White Ski Resort Ltd., [1997] B.C.J. No. 725 (B.C.S.C.), the plaintiff suffered injury when he collided with a snowmobile operated by an employee of the defendant ski resort. It was not uncommon to find a snowmobile on the grounds of the ski resort, used within the scope of employees duties at the hill. As part of the process to obtain a season s pass, the plaintiff had signed a waiver. The plaintiff had also held a season s pass for the previous four years. Prior to the commencement of the ski season, the plaintiff received an application package for a season s pass in the mail. The application form indicated that the pass holder would be required to sign a waiver. It was the plaintiff s evidence that he signed the waiver without looking at it. He was told to sign in certain areas and he did so. The waiver contained a heading in large block letters that set out the fact that there was an exclusion of liability contained therein, and advised to read the contents carefully. The plaintiff was required to print his name and address in a space directlybelow the heading. Again, he stated that a representative of the defendant merely pointed to the area, and told him what to write. He did so without looking at the heading. The Court found that the defendant was entitled to rely on the provision of the waiver. It was the plaintiff s own choice not to read the contents.

15 -15- (B) Tickets & Signage In Wilson v. Blue Mountain Resort Ltd. (1975), 4 O.R. (2d) 713 (Ont. H.C.J.), the plaintiff sustained injury when he skied into a stream bed. He had been following an access trail leading to a ski run. The path led over a gully and into a stream bed. The plaintiff was not able to stop, became airborne, and landed heavily in the stream bed. The plaintiff alleged that there weren t any markings to indicate a the existence of a dangerous condition. Evidence adduced indicated that there were some small sticks that may have been placed in a criss-cross fashion, however, these were not the usual bamboo poles that were to be used, and there weren t any red flags marking the area. The plaintiff had purchased a day pass, which contained an exclusionary clause. However, the warning on the face of the ticket that the back of the ticket contained an exclusionary clause was printed in small letters, sandwiched between larger warnings that the ticket was not transferable or refundable. The Court found that a provision on the back of a ticket is of no effect where the wording has not been brought to the skier s attention. Additionally, the Court found that the gully constituted a hidden and unusual danger, and therefore was not an inherent risk that the plaintiff accepted by skiing on the premises. The defendant had a duty to warn skiers of the unusual dangerous condition. In McQuay v. Big White Ski Resort Ltd., [1993] B.C.J. No (B.C.S.C.), the question for determination was whether or not the plaintiff was bound by the conditions contained on the ski pass and notice sign. The plaintiff suffered an injury (fractured pelvis) when he skied into in a concrete

16 -16- drainage ditch. On the day of the injury, he had purchased a lift ticket from the defendant, which contained an exclusionary clause. The face of the ticket contained the exclusion, printed in red and blue capital letters. A portion of the exclusion was surrounded by a red border. Additionally, signs were posted in a number of locations that also set out the exclusion of liability. The signs were yellow, with a red border and black capital letters. The plaintiff admitted that he knew that there were signs posted, and that he knew that there was writing on the ticket which was some form of condition related to skiing at own risk, but he did not read them. The plaintiff had skied for nineteen years. The Court found that the plaintiff s failure to read the conditions was irrelevant. He had the opportunity, but failed to take the time to do so. The plaintiff s action was dismissed. In Dawes v. Cypress Bowl Recreational, [1994] B.C.J. No (B.C.S.C.), the plaintiff was also precluded from bringing an action against the defendant occupier due to the posting of an exclusionary clause on a day pass and notice sign. The plaintiff sustained injury when he fell on the downhill side of a marshaling area for the chairlift. The day pass contained a heading in red capital letters that notified of an exclusionary clause to follow. The exclusionary clause itself was encircled by a red border. The plaintiff admitted that he was aware of wording on the ticket, and that there was some form of limitation on the back of the ticket. The plaintiff had skied for approximately seventeen years.

17 -17- The Court held that it is not up to the defendant to force the plaintiff to read the exclusion clause. As the defendant had met its obligation to take reasonable steps to bring the clause to the plaintiff s attention by posting the clause on the ticket and ticket wickets, the plaintiffs claim was dismissed. In Greeven v. Blackcomb Skiing Enterprises Ltd., [1994] B.C.J No (B.C.S.C.), the experience level of the plaintiff was a factor considered in assessing whether or not the plaintiff should be bound by the terms of an exclusionary clause. The plaintiff, who was a resident of England, sustained injury while skiing on the defendant s hill. The plaintiff had some limited experience skiing in Europe and the United States, but she had never skied in Canada. The day of the injury was the plaintiff s first visit to Blackcomb Mountain. The day pass ticket that the plaintiff had purchased contained an exclusionary clause. The face of the ticket contained a notice, in fairly small lettering, to read the exclusion on the back. The back of the ticket contained a heading in heavy print, and the remainder of the wording was in small print. In addition to the ticket wording, there were yellow and red signs posted in front of the ticket wickets which set out the exclusionary clause. It was the plaintiff s evidence that she did not see the signs, and was not aware of any writing on the ticket. The Court found the evidence presented as to the number of signs posted and the locations of signs to be vague, and therefore could not conclude that the plaintiff would have seen them. Additionally, the court found that there was nothing particular about the ticket that would necessarily draw the exclusionary clause to the attention of the reasonably alert person who did not have prior

18 -18- knowledge that tickets contained exclusions. The defendant was not entitled to rely on the exclusionary terms contained on the ticket and signs. In Brown v. Blue Mountain Resort Ltd., [2002] O.J. No (Ont. Sup. Ct.), the plaintiff, an experienced skier, was injured while skiing at the defendant s facility. She had visited these facilities several times in the past. The plaintiff was injured after skiing through a patch of slush. The plaintiff alleged that the defendant was negligent and had breached the Occupiers Liability Act by failing to remove the patch of slush from the slope. The defendant brought a motion to dismiss the plaintiff s action, arguing that there was no actionable misconduct, that the ski ticket contained an exclusionary clause, and that there were several prominent signs posted that set out the exclusionary clause. This motion was dismissed. It was held that there was a genuine issue to be tried, as evidence presented by the plaintiff raised the question of whether or not the defendant was negligent in creating and failing to warn skiers of an unexpected hazard. It was the plaintiff s position that such unexpected hazards would not be covered by the exclusion of liability. Ski areas face exposure on many fronts. Skiers slip and fall in parking lots, cafeterias, on paths, and in the lodges. Skiers are injured when lifts fail and break down. Skiers run into skiers. The ski hill operator may be sued for inadequate supervision and policing. Bindings do not release on rental skis. Skiers run into man made objects. Drunks hurt themselves. Liquor liability exposure exists. Drunks

19 -19- should not be let on the hills in the first place. People wipe out getting on lifts. The attendant did not react quickly enough. The list goes on. Being a ski area liability lawyer could be a full-time job. GOLF A number of different types of occurrences can expose an owner of a golf course or a player on a course to liability. They can range from accidents with golf carts, injury suffered when struck by a golf ball, or even assaults by other golfers. The leading case in Ontario in respect of liability stemming from injuries sustained as a result of errant golf balls is Ellison v. Rogers et al., [1968] 1 O.R. 501 (Ont. H.C.J.). In Ellison, a golfer hit a drive, which struck another golfer on a parallel fairway. The Court held that the defendant was not negligent, as it was not unusual to have a ball stray...from one fairway to another ; rather, it was a normal risk of the game. A golfer is deemed to accept the normal risks of being on a golf course. In McVety v. Mahoney (1980), 25 A.R. 173 (Alta. Q.B.), the plaintiff suffered injury when he was struck in the mouth by a golf ball. The plaintiff and his golfing companion had just finished putting the green on the 6 th hole. The defendant was playing behind them, and took his shot from the fairway. At the time, the plaintiff was approximately ten feet from the edge of the green. The defendant was found liable for the plaintiff s injuries, as he did not ensure that all players had cleared the area prior

20 -20- to hitting his ball. The court held that players must exercise common sense. If players are on the same hole and clearly visible within range, it is negligent to hit a golf ball toward them. In Pope v. RGC Management, [2002] A.J. No (Alta. Q.B.), the plaintiff was injured when she was struck in the mouth by a golf ball. The golfer whose ball hit her looked to see if the way was clear for him to take his shot. He observed that it was. He then took his practice swings, but did not look up again prior to hitting the ball. In the intervening time frame, the plaintiff had walked forward to her ball. She did not warn the other golfer of her actions. The Court held that Pope was responsible for her own misfortune as it was she who advanced into the danger zone. The Court concluded that the other golfer was not negligent, as he had no way of knowing Pope would advance without signaling her advance. In Liang v. Allen, [2003] B.C.J. No. 768 (B.C. Prov. Crt), the plaintiff was struck by a golf ball while standing off the course. The errant ball was the result of a hooked shot by the defendant. The Court confirmed that one golfer owes a duty of care to another golfer. It also determined that the defendant s shot had been a mistake that could happen to any golfer. The defendant did not have the intention to strike anyone, and did not even have the plaintiff in sight, due to a group of bushes that separated them. Typical errors that could happen to any golfer are not actionable wrongs or a breach of the duty of care owed one golfer by another. Emery v. Monarch, [1998] B.C.J. No (B.C.S.C.), concerns an assault by one golfer upon another. The plaintiff sued the golf course based on allegations of a breach of the Occupiers

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