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  • Unreported Judgment

Gaffney v Cranston McEachern & Co

 

[2004] QSC 129

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO:

Trial

PROCEEDING:

Claim

ORIGINATING COURT:

DELIVERED ON:

29 April 2004

DELIVERED AT:

Brisbane

HEARING DATES:

16, 17, 18, and 19 February 2004

JUDGE:

Helman J.

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – WHERE ECONOMIC OR FINANCIAL LOSS – CARELESS ADVICE, STATEMENTS AND NON-DISCLOSURE – PARTICULAR PERSONS AND SITUATIONS – PROFESSIONAL ADVISERS – accident on Aer Lingus flight – solicitor failed to advise of limitation period applicable to claim – whether plaintiff would have taken that advice – assessment of plaintiff’s loss.

Warsaw Convention 1929

Dickson & Anor. v Creevey [2002] Q.C.A. 195
Johnson v. Perez (1988) 166 C.L.R. 351
Malec v. J.C. Hutton Pty Ltd (1990) 169 C.L.R. 638
Nikolaou v. Papasavas, Phillips & Co. (1988) 166 C.L.R. 394
Sellars v. Adelaide Petroleum N.L. (1994) 179 C.L.R. 332.

COUNSEL:

Mr M.J. Drysdale for the plaintiff                                        
Mr R.C. Morton for the defendant

SOLICITORS:

Nicol Robinson Halletts for the plaintiff
McInnes Wilson for the defendant

[1] In this proceeding, instituted on 27 October 2000, the plaintiff initially claimed $628,562 damages for breach of contract, or alternatively for negligence, against the defendant, a firm of solicitors he retained in late 1996 to pursue a claim for damages for personal injuries.  The claim arose out of an incident that occurred on 29 October 1995 at Heathrow Airport, London on an aeroplane operated by Aer Lingus.  The plaintiff, a single man who was born in Ireland on 19 November 1934, migrated to Australia in 1956 and prospered here in a number of occupations including that of real estate agent.  He was travelling with his brother James on the day in question.  They had boarded flight EI713  to travel from London to Cork.  As the plaintiff was moving into his allocated seat he fell when the back of the seat upon which he was steadying himself with his right hand broke.  He claims he was injured when his right side hit a hard object.  The plaintiff was then placed in another seat and he and his brother completed their journey to Cork on 29 October 1995.  They returned to Australia on about 5 November 1995, calling short their holiday because the plaintiff was unable to continue after he was injured.

[2] Any claim for damages that the plaintiff might have pursued would have been brought in reliance on the Warsaw Convention 1929, as amended by the Hague Protocol 1955, and should have been brought in the Republic of Ireland within two years from 29 October 1995 as required by articles 28 and 29 of the Convention.    At the trial the defendant admitted that they breached their contractual and other obligations to the plaintiff first in failing to advise him of the necessity to institute any claim in Ireland, and secondly in failing to advise him of the necessity to bring the claim within the limitation period. 

[3] The plaintiff claims he suffered a severe and persisting injury to his ribs and other less serious injuries to his neck and back in the fall.  His own evidence was to that effect, and the evidence of witnesses called on his behalf (Ms Maria Catena-Elia, Mr Anthony Glynn, and Drs Stuart Reece, Robert Cooke, and Maurice Heiner) and other evidence in expert reports supported his claim.  On behalf of the defendant it was contended that his injuries were only minor.

[4] The plaintiff’s neck and lower back were injured in a motor vehicle collision in 1979.  He wore a neck brace for some time following that incident, and at the time of his departure for Ireland he still suffered intermittent neck pain.  He was compensated for those injuries after a trial in the District Court in 1990.  It was the defendant’s case at this trial that the plaintiff’s fall on the Aer Lingus flight produced only short-lived and minor aggravation of the plaintiff’s neck and back condition.

[5] I shall now outline the evidence supporting the plaintiff’s evidence.

[6] Ms Catena-Elia, now a resident of Switzerland, was employed part-time by the plaintiff in an administrative capacity in his office.  At the time of the plaintiff’s journey to Ireland she and he had talked of marriage.  Their relationship came to an end,however, in about 2000.  She gave evidence that she saw the plaintiff soon after his return from Ireland – ‘[w]ithin a matter of days’,  but he stood back from her and held onto his side.  Her recollection was that he had a ‘rib problem’ on the right side.  She did not recall his complaining of pain in his neck and lower back on his return.

[7] Mr Glynn, barrister-at-law, is a friend of the plaintiff with whom he had had business dealings when the plaintiff managed his rental property.  Mr Glynn gave evidence that the plaintiff appeared to be ‘carrying an injury to his rib area’ when Mr Glynn saw him ‘fairly shortly’ – within a week – after his return from Ireland.  As observed by Mr Glynn, the plaintiff’s condition has appeared to worsen significantly since.  Mr Glynn conceded however that he could be influenced by ‘current knowledge’ in saying that the plaintiff had a rib problem when the latter returned from Ireland. 

[8] The plaintiff consulted Dr Ronan Gleeson in Cork after the incident, but no report or other evidence from Dr Gleeson was produced at the trial, although in answers to questions in cross-examination Dr Cooke, orthopaedic surgeon, referred to Dr Gleeson’s opinion that the plaintiff had suffered fractures of his right eighth and ninth ribs as a result of the fall.  Imaging studies and clinical examinations revealed no such fractures.  The plaintiff did not consult his general practitioner, Dr Reece of Highgate Hill, until 22 January 1996.  He consulted Dr Reece twice more in 1996:  on 12 February and 13 May.  The only other doctors the plaintiff consulted in 1996 were Dr Cooke, whom he saw on 28 February, and Dr Geoffrey Hirst, urologist, whom he saw in March.  The latter consultation concerned a condition, Peyronie’s disease, which is in no way relevant to this claim.  Neither Dr Reece nor Dr Cooke recorded in a clinical note any explicit reference to a complaint by the plaintiff in 1996 concerning his ribs, but each gave oral evidence that the rib area had been the subject of complaint then.  The first note concerning a complaint about ribs was made by Dr Reece on 30 April 1997, eighteen months after the fall.

[9] Dr Reece’s evidence was that the plaintiff’s complaints on 22 January and 12 February 1996 were of ‘a diffuse, poorly localized’ pain on ‘the right-hand side of his body in the neck and back’ as a result of which Dr Reece referred him to Dr Cooke.   But in a letter dated 12 February 1996 to Dr Cooke, Dr Reece referred to the plaintiff’s ‘continuing back/neck pain’ three months after his fall.  In Dr Reece’s notes of the consultation of 13 May 1996 there are recorded low back pain, nonsteroidal anti-inflammatory causing nausea at about T5/6 and C7, and pain from an accident (referred to ‘MVA’ in the notes).  By 30 April 1997 the pain had become ‘intensely localized’ and Dr Reece noted increasing pain in the right chest and ‘[c]atching right ribs and chest’. 

[10] Dr Cooke’s notes concerning the consultation of 28 February 1996 include no reference to chest-wall - or rib - pain, although Dr Cooke maintained he had a clear memory of the plaintiff’s complaining of a chest-wall problem at that consultation.  The chest-wall problem was, Dr Cooke asserted, the reason the plaintiff was referred to him;  although he agreed when cross-examined that Dr Reece’s letter referring the plaintiff to him did not mention chest-wall pain.  Dr Cooke’s first note of a complaint of chest-wall pain by the plaintiff was made in relation to the plaintiff’s visit to him on 16 July 1997.  Dr Cooke’s opinion was that the rib pain of which the plaintiff complains is chiefly referred from an injury to the T6/7 disc in his thoracic spine suffered when he fell.  The plaintiff’s spine shows generalized spondylosis, but the plaintiff’s continuing suffering and disability were directly related to aggravation of pre-existing spondylitic changes involving particularly his thoracic spine in the T6/7 region, and, to a lesser extent, his cervical spine in the C4/5 and C5/6 segments.  Dr Cooke considered that the plaintiff’s condition resulting from the injury suffered in the fall will continue to trouble him with progression of the degenerative spondylitic and osteoarthritic changes, which have been aggravated and accelerated by his fall. 

[11] Dr Heiner, consultant thoracic physician, first saw the plaintiff on 24 July 1997 at Dr Cooke’s request.  Dr Heiner saw him a number of times after that.  Dr Heiner’s opinion was that the plaintiff sustained severe soft tissue injuries to his right hemithorax when he fell.  While no marked anatomical abnormality could be demonstrated, and so no organic cause for the pain could be found, Dr Heiner’s assessment was that he suffers from diffuse chronic myofascial pain caused by the injury.   

[12] Dr Peter Wragg, specialist in vascular surgery and general surgery of the chest, first saw the plaintiff on 30 July 1997 after he was referred by Dr Heiner. The plaintiff complained of pain in his right lower ribs.  On examination he was apparently tender in the right lower rib cage and had a ‘very localised’ trigger spot.  On 14 August 1997 Dr Wragg performed a right thoracoscopy with intercostal blocks.  There was widespread benign thin plaque within normal limits lining the chest wall but none in the area of the trigger spot.  Otherwise the chest was normal.  Dr Wragg concluded that the pain was somatic.  Dr Wragg could find no objective evidence of any physical problem despite a most intensive investigation.  In a letter dated 17 February 1999 to the plaintiff’s then solicitors, Dr Wragg recorded, however, his inability to find any physical cause for the plaintiff’s condition so that it was, Dr Wragg said, difficult to say whether it was consistent with a fall.

[13] Dr Heiner also referred the plaintiff to Dr James Bradley, anaesthetist specializing in pain management, who reported the plaintiff’s case as one of ‘multi segmental myofascial pain syndrome’ in a letter to Dr Heiner dated 25 February 1998.

[14] Although the diagnoses of the plaintiff’s condition given by Drs Cooke and Heiner were different, they were at one in attributing his condition to the injury suffered in the fall.  The plaintiff’s case that he would have been found to have suffered a serious permanent injury in the fall was then based chiefly on his evidence and that of Ms Catena-Elia, Mr Glynn and Drs Reece, Cooke, and Heiner.  Dr Bradley’s assessment confirms Dr Heiner’s, and Dr Wragg’s eliminates chest disease as the cause of the plaintiff’s condition.

[15] On behalf of the defendant it was contended that it would have been concluded on the evidence before an Irish court that the fall caused no more than a short-lived and minor aggravation of the plaintiff’s neck and back conditions.  Contemporary documents and other evidence support that conclusion, it was submitted.

[16] In a letter dated 31 October 1995 to Aer Lingus the plaintiff gave an account of his fall asserting that he had sustained injuries to his neck and back, that he felt as if he tore something in his back, and that when he left the aeroplane the pain was very severe.  He rested at his brother’s house but the pain became more severe in his back, neck, and head, he wrote.  There was no mention in the letter of any injury to his ribs or pain in the chest area.  The absence of any reference to such injury or pain in the notes taken by Mr Reece before 30 April 1997 and by Dr Cooke before 16 July 1997 was also relied on. 

[17] Further support for the defendant’s contention may be found, it was submitted, in the plaintiff’s delay in consulting Dr Reece for two and a half months after his return to Brisbane and in his not consulting any doctor from when he last consulted Dr Reece in 1996, on 13 May, to when he next consulted Dr Reece, on 30 April 1997.  Between those two dates the only pharmaceutical expenses incurred were on 9 July 1996:  $17.90, as appears from the plaintiff’s schedule of special damages, exhibit 7. 

[18] Mr Peter Deed, solicitor and member of the defendant firm, gave evidence that he received instructions on about 16 September 1996 to act for the plaintiff to make a claim against Aer Lingus, having been asked to telephone the plaintiff by Mr Glynn’s secretary.  Mr Deed saw the plaintiff at the latter’s office at West End on 10 October 1996.  Mr Deed made no note of the plaintiff’s instructions about his injuries, but he said that his recollection was of the plaintiff’s complaining of a neck and back injury.  Mr Deed said that after 10 October 1996 he had received a copy of the plaintiff’s letter dated 31 October 1995 to Aer Lingus, and that he sent a letter dated 27 November 1996 addressed to Aer Lingus at 217 George Street, Brisbane notifying it of the plaintiff’s claim.  On or about 13 January 1997 he prepared a notice of the plaintiff’s claim to the Health Insurance Commission.  In the latter two documents the plaintiff’s injuries were said to be to his neck and back, with no reference to chest or ribs.  The first notice Mr Deed had of a complaint by the plaintiff concerning his ribs was in a letter dated 6 August 1997, Mr Deed said.  In the last-mentioned letter the plaintiff referred to his consulting Drs Cooke, Heiner, and Wragg.

[19] Apart from the evidence of contemporary documents and of the plaintiff’s failure to complain about rib pain until 1997 there was, in support of the defendant’s case, the expert evidence of Dr Paul Pincus, orthopaedic surgeon.  Dr Pincus, who examined the plaintiff on 30 November 2001, said that the plaintiff demonstrated completed bizarre clinical signs:  groans, gasps of pain, and slow movements.Dr Pincus’s opinion was that the plaintiff had not suffered any significant injury to his chest wall in the fall.  Although Dr Pincus conceded that there was a considerable body of medical opinion that supports myofascial pain syndrome as a diagnosis, he said it was a way of describing a set of symptoms rather than a diagnosis:   it was no more than saying that a patient has pain.  That opinion would, if accepted, be an answer to Dr Heiner’s evidence.  Dr Pincus also expressed disagreement with Dr Cooke’s opinion as to the cause of the plaintiff’s condition.  The plaintiff’s complaint was of costal wall pain, which is not the pain caused by a thoracic disc prolapse, Dr Pincus said.  The state of the plaintiff’s spine is that which comes with ageing.  The plaintiff’s complaint of ‘global chest wall agony’ locally tender when touched is not consistent with a diagnosis of thoracic nerve root pain, which is a neuralgic shooting pain in a ‘very localized’ strip from the spine around to the midline, Dr Pincus said.  Dr Pincus agreed that in drawing his conclusions one of the circumstances he took into account was the alleged failure of the plaintiff to complain of chest wall pain for a long time after the incident.

[20] I was assisted by the evidence of Mr Tony O’Connor, barrister-at-law practising in Dublin.  Mr O’Connor was admitted to the roll of solicitors in Ireland in 1983 and was called to the bar of Ireland in 1991.  He practises in the fields of professional negligence, Warsaw Convention cases, and personal injury claims. He gave oral evidence by telephone from Dublin and provided a report on questions of law arising in this case:  exhibit 10, dated 3 April 2001.

[21] Article 17 of the Warsaw Convention, as amended, which applies in the Republic of Ireland by operation of the Air Navigation and Transport Act 1936, as amended, provides, so far as it is relevant, that a carrier shall be liable for damage sustained in the event of any bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board an aircraft.  There was an issue raised by the defendant in paragraph 7(b) of its amended defence as to whether the plaintiff’s fall was an ‘accident’ within the meaning of article 17, but the point was not pursued in Mr Morton’s final address on behalf of the defendant:  see the transcript at pp. 252 and 275.  An issue raised in paragraph 7(e) and (f) of the amended defence in reliance on article 20, which provides that a carrier is not liable if it proves that it and its servants and agents have taken all necessary measures to avoid the damage suffered by a claimant or that it was impossible for it to take such measures, was not pursued at the trial.  Mr O’Connor referred to article 17 and inter alia to articles 28 and 29, and to article 22 providing for the monetary limit applying to claims under the convention.  As to the latter, I should mention that in the course of the hearing before me the parties agreed that the limit is higher than $150,000, which is, as I shall relate, more than the sum ultimately contended for on behalf of the plaintiff.

[22] The defendant was clearly in breach of its duty as solicitor to the plaintiff in failing to advise him of the limitation period applicable to his claim, and, on the evidence, I am satisfied that had the plaintiff been properly advised he would have pursued his claim – not necessarily to a trial, but at least to point of instituting and then settling it.  The plaintiff is a man of substantial means who would not, I conclude, have been deterred by the possibility of losing his case.  He appeared genuine in his belief that he had been severely permanently injured in his fall.  This case is distinguishable from Dickson & Anor. v Creevey [2002] Q.C.A. 195, in which the plaintiffs failed to prove a causal connexion between their solicitor’s breach of duty to advise them properly and any loss they might have suffered, because they failed to prove that they would have sued if properly advised.  No question as to whether the liability of the defendant is in contract or tort was raised before me, and, as in Johnson v. Perez (1988) 166 C.L.R. 351, that question is not material to the determination of the case:  ibid, at p. 363 per Wilson, Toohey, and Gaudron JJ.  The plaintiff was, then, deprived by the defendant’s breach of duty of the loss of a chance to recover on a cause of action:  ibid at p. 360 per Mason C.J. 

[23] The plaintiff’s cause of action against the defendant arose when his claim became barred by operation of articles 28 and 29 of the Convention.  The correct approach to the assessment of damages in such a case was explained by Wilson, Dawson, Toohey, and Gaudron JJ. in Nikolaou v. Papasavas, Phillips & Co. (1988) 166 C.L.R. 394:

For reasons which are set out in some detail in Johnson v. Perez his Honour should first have focused on Mr Nikolaou’s situation when his claim for damages for personal injuries became statute-barred.  He should have assessed damages by reference to the loss at that date of the right to claim damages.  That loss would ordinarily be quantified by the trial judge taking a broad brush approach to the several matters that in a particular case may require to be resolved – the likely date when in the absence of the negligence of the solicitor the action would have come to trial, the evidence that would or should have been available to the plaintiff at that time, the relevant principles of law then governing the assessment of damages, the question of contributory negligence, and (an issue which would not be a problem in the present case) the prospects of any judgment given in favour of the plaintiff being satisfied – in order to arrive at a figure representing the loss suffered by the plaintiff when his action against the defendant was dismissed.  (p.404)

There was no issue of contributory negligence in this case nor was there any suggestion that had the plaintiff pursued his claim against Aer Lingus any judgment given in his favour would not be satisfied.  What emerged as the central issue was what sum, if any, would be recovered by the plaintiff had he been given correct advice.  The outcome of the plaintiff’s hypothetical claim is of course a hypothetical event of the kind referred to by Deane, Gaudron, and McHugh JJ. in Malec v J.C. Hutton Pty Ltd (1990) 169 C.L.R. 638 at pp. 642-643;  and see Sellars v. Adelaide Petroleum N.L. (1994) 179 C.L.R. 332.

[24] The evidence revealed a number of possible outcomes:  at worst for the defendant in this proceeding a full acceptance of the plaintiff’s case with an order for costs against Aer Lingus, and at best a settlement for a modest sum.  A factor in the case of some significance is that all of the witnesses likely to have given evidence in the case were resident in Australia, with the possible exception of Ms Catena-Elia,  but any difficulty that presented could probably have been overcome by the use of video-link evidence, which, according to Mr O’Connor, could be received by an Irish court in civil proceedings.  The prospect of Aer Lingus’s having to bear the costs of the travel to Ireland of the plaintiff and his witnesses would, however, have been a factor in its approach to the plaintiff’s claim;  and  on the other hand the plaintiff may have been deterred by the prospect of the long journey back to Ireland to pursue his claim.  According to Mr O’Connor’s evidence Aer Lingus would have been receptive to suggestions that it settle the claim before a hearing, and the plaintiff said that had proceedings been instituted on his behalf in 1997 he would have been prepared to settle his claim for $60,000 and costs in or about 1999, had he been advised to do so.

[25] Mr O’Connor pointed out that there is no precise means of assessing general damages for personal injuries in the Irish courts, much depending on the presentation of the plaintiff or claimant, the consistency of his account with the findings and conclusions of medical witnesses, and, he said, the judge trying the case.  From Mr O’Connor’s experience, however, he valued the general damages that would be awarded to the plaintiff in respect of the injuries sustained on 29 October 1995 at £Ir 30,000 for pain and suffering to the date of his report and £Ir 20,000 for future pain, loss, and suffering.  Mr O’Connor advised that the Irish courts would not award damages for ‘economic loss’ allegedly suffered by the plaintiff because of the lack of supporting medical evidence and because of the principle that a plaintiff is obliged to minimize his loss.  More importantly, Mr O’Connor said, it was not clear at all as to how the injuries that the plaintiff sustained on 29 October 1995 could have contributed to the losses.The probability was, Mr O’Connor said, that a trial judge would pay little regard to the detailed account of the alleged losses and would seek to compensate the plaintiff in the award of general damages.  The figures for general damages mentioned by Mr O’Connor took that aspect of the case into account.  In addition to general damages, the plaintiff would be entitled to recover all expenses, including medical and travelling expenses, ‘connected with the injuries’.

[26] Mr O’Connor said that if a proceeding had been begun on behalf of the plaintiff before October 1997 in an Irish court it would have been heard within two to three years.  The case could have been heard before the District Court which has jurisdiction to award damages up to £Ir 5,000, the Circuit Court which has jurisdiction to award damages up to £Ir 30,000, and the High Court which has no restriction on the sum of damages it may award.  It would seem from Mr O’Connor’s evidence – the only evidence on the subject – that it would have been prudent to begin any proceedings on behalf of the plaintiff in Ireland in the High Court.  It is reasonable to proceed on the assumption that had that been done and the case not been settled,  the  claim would have determined about four years before the trial in this proceeding, i.e., in about February 2000.  The date of Mr O’Connor’s report was, as I have mentioned, 3 April 2001, but nothing turns on the fact that the hypothetical trial would have occurred over a year before that because it is Mr O’Connor’s total figure for general damages that is relevant.  It was agreed at the hearing that the exchange rate at 30 June 1999 was £Ir 1 to $A 1.98433, and at 30 June 2000 £Ir 1 to $A 2.00826, and that that rate could, for the purposes of my determination, be rounded to £Ir 1 to $A 2.

[27] A schedule of special damages was put before me, as I have mentioned.  It showed a total of $10,037.17, but in the course of his submissions Mr Drysdale, on behalf of the plaintiff conceded that expenses incurred after the date when the plaintiff’s claim would have been determined in an Irish court were not recoverable as special damages.  I should mention here that on behalf of the defendant Mr Morton submitted that special damages should be confined to expenses incurred in only 1995 and 1996.  As I understand the plaintiff’s case it is not asserted that interest would have been awarded on any component of the plaintiff’s damages in an Irish court.

[28] Had the plaintiff pursued his claim successfully in an Irish court he would have been entitled to an award of party-and-party costs.  Any figure arrived at for his recovery of damages must however be adjusted by a reduction of ten per cent. to take into account the discrepancy between solicitor-and-own client costs and party-and- party costs.

[29] The highest award of general damages that could have been made in favour of the plaintiff was $100,000.  That figure should be adjusted to $90,000 to take into account the discrepancy between solicitor-and-own client costs and party-and-party costs.  So too should any sum arrived at for special damages be reduced by ten per cent. for the same reason.  It is, however, by no means certain that the plaintiff would have recovered the $90,000 together with special damages, so there must be a discount to reflect the degree of probability of the occurrence of that hypothetical event.  Taking into account the absence of any reference to chest or rib pain in the plaintiff’s letter of 31 October 1995 to Aer Lingus, the absence of any such reference in notes taken by doctors he consulted before 30 April 1997 and the evidence of Mr Deed and Dr Pincus, I conclude that any defence to the claim that might have been mounted by Aer Lingus could be regarded as a reasonably strong one.  On the other hand both Drs Reece and Cooke were adamant that the plaintiff had complained to them in 1996 about his ribs and chest.  Both doctors appeared to me credible witnesses as did Ms Catena-Elia and Mr Glynn.  Mr Glynn was meticulous in conceding the possibility that he was mistaken but appeared confident that he was not.  There seemed to be no reason to doubt his account of seeing the plaintiff soon after the plaintiff returned from Ireland.  I should mention that the plaintiff himself was not an entirely satisfactory witness.  Some of his answers could legitimately be regarded as unresponsive.  The fate of any claim he might have made would in the end, I think, have depended upon the judge’s assessment of the evidence of other witnesses and contemporary documents.  Taking those features of the case into account as well as the possibility that the case would have been settled before trial, I assess the plaintiff’s loss at $65,000.

[30] There will be judgment for the plaintiff against the defendant for $65,000.  I shall invite further submissions on interest and costs.

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Editorial Notes

  • Published Case Name:

    Gaffney v Cranston McEachern & Co

  • Shortened Case Name:

    Gaffney v Cranston McEachern & Co

  • MNC:

    [2004] QSC 129

  • Court:

    QSC

  • Judge(s):

    Helman J

  • Date:

    29 Apr 2004

Litigation History

No Litigation History

Appeal Status

No Status