How Do Trial Delays Hurt Personal Injury Victims?

In October 2019, Waldock v. State Farm Mutual Automobile Insurance Company, which was initially a dispute between plaintiff Thomas Waldock and his insurance provider over the severity of his injuries, was resolved by an Ontario divisional court panel. Through appeals and reviews, the case was heard by the Financial Services Commission of Ontario (FSCO), the Director’s Delegate, and the Superior Court. It took more than 10 years from the time of his accident in March 2008 for Waldock and his personal injury lawyer to be awarded compensation – unless, of course, State Farm decides to appeal the divisional court ruling.

Unfortunately, years- and even decade-long personal injury and insurance dispute cases are no longer unusual in Ontario and elsewhere in Canada, as a recent Canadian Lawyer article makes clear. In Waldock v. State Farm, the insurance provider’s decision to file numerous motions and appeals caused the bulk of the delay, but defendants aren’t always to blame.

What Causes Trial Delays?

According to the plaintiff and defence side lawyers interviewed for the Canadian Lawyer article, are a range of structural issues cause trial delays in Canada. In Alberta, parties must complete expert reports, certify that they’ve attempted alternative dispute resolution processes, and demonstrate that they’ve completed questioning before a trial date can even be scheduled.

“You’ve got about two years – on a large case – of taking all those preliminary steps and getting everything in order,” one insurance defence lawyer in Alberta told Canadian Lawyer. “And then [there’s] another two-year wait for the date itself.”

“Judges want to know you’ve done all your work and you’re very serious and you’ve been forced to think through all the issues before using judicial resources, because those are really short in Alberta,” the lawyer added.

Mandatory mediation is also an issue in Ontario, according to one personal injury lawyer. Prior to recent changes, parties in personal injury cases or insurance disputes could schedule a trial date as long as a mediation date was also set. Now, the mediation must be complete before a trial date is approved.

“That delays the whole process by a number of years. … I’m finding that very, very frustrating,” the personal injury lawyer told Canadian Lawyer. “It’s just adding another year to the process.”

In contrast, British Columbia has no restrictions on trial scheduling, meaning fewer trial delays.

“You can get a trial date right away if you want,” a personal injury defence lawyer practicing in B.C. told Canadian Lawyer. “I really haven’t had any issues with trial delays. I think we have overall a very reasonable system. Two years is a pretty reasonable time frame for trials, and we seem to get those dates relatively easily.”

Further delaying matters is the fact that criminal and family law cases take precedence over personal injury claims and insurance disputes.

The parties’ actions can also have an effect, as in Waldock v. State Farm. One civil litigator who spoke with Canadian Lawyer said civil disputes now involve more numerous and extensive reports; plaintiffs will often submit economic loss, future care, and vocational reports, while the defence side prioritizes lengthy examinations for discovery, medical examinations, and other processes.

Who is Affected by Trial Delays?

Personal injury lawyers tend to blame powerful defendants like insurance providers and the Canadian Medical Protective Association (CMPA) for trial delays. They claim that organizations with deep pockets prefer to ‘wait out’ plaintiffs with limited resources, forcing them to accept less compensation than they deserve. But most insurance providers prefer swift resolutions to legal disputes – years of litigation involving lawyers and expert witnesses is extremely costly.

Plaintiff side lawyers are also hurt by years of slow-moving litigation. When a case drags on for months or years longer than expected, clients have a tendency to second-guess their lawyer’s expertise.

“That might seem reasonable to a lawyer that’s practiced in the area of 10,20, 30 years,” one personal injury lawyer told Canadian Lawyer. “But it’s a long time for my clients that don’t understand the process. And a lot of times they’re concerned that the lawyers are dragging their heels.”

Plaintiffs are acutely affected by trial delays. Recovery from a serious personal injury can be costly, especially if the victim is unable to work. Between rehabilitation, medication, home and attendant care, home renovations, and other expenses, many injury victims struggle to keep their heads above water financially. Every trial delay, every appeal and motion, puts fair and reasonable compensation further out of reach.

Contact an Experienced Personal Injury Lawyer

If you’ve been injured in an accident or are engaged in a dispute with your insurer, contact Will Davidson LLP to speak with an Ontario personal injury lawyer. Our experienced team will assess your claim, explain your legal options, and describe what to expect from a civil claim. Contact us today to schedule a free, no-obligation consultation.

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Social Media and Personal Injury Claims

Social media was once dominated by teens and college students. Not anymore: today, Canadians of all ages and backgrounds, from Newfoundland to British Columbia to Nunavut, tend to post, like, and comment on a daily basis. Nearly three quarters of Canadians (74 per cent) spend at least 3-4 hours online per day, according to the Canadian Internet Registration Authority (CIRA), and more than 60 per cent engage on social media. The social internet’s growing role in our lives has implications for everyone, including personal injury lawyers and plaintiffs seeking compensation.

How can Social Media Hurt My Personal Injury Claim?

Plaintiffs seek compensation in personal injury lawsuits when their life has been significantly disrupted. Serious physical injuries – brain injuries, spinal injuries, chronic pain, etc. – are common in these claims. In order to prove that their client has been injured, personal injury lawyers turn to testimony from expert medical witnesses, friends, family members, and other sources.

The compensation that a plaintiff receives depends on the extent of their injuries. Larger settlements are reserved for injury victims whose lives have been most seriously altered, including individuals who are no longer able to earn a living, or who will require constant medical care. Less serious injuries tend to result in lower compensation.

When a social media post contradicts a plaintiff’s claims, the judge, mediator, or arbitrator may choose to reduce compensation. Defence lawyers often scour plaintiffs’ social media posts in search of evidence to refute their claims. For example: if a plaintiff alleges that her injuries prevent her from socializing, but a Facebook post emerges showing her at a restaurant or bar with friends, the validity of her claim will be thrown into question.

How to Prevent Social Media Hurting My Claim

The best way to avoid hurting your personal injury claim through social media is to stay away from the platforms altogether. Delete your Facebook, Instagram, Twitter, and Snapchat accounts for the duration of your case.

This is a drastic step, of course, especially considering that many personal injury lawsuits drag on for years. The more reasonable solution is to set all your accounts to private mode and consider very carefully what content you share. Discuss with your personal injury lawyer what sort of posts are safe and which could put you in trouble.

Contact Will Davidson LLP

If you or a member of your family has been injured in an accident, contact Will Davidson LLP’s team of Oakville personal injury lawyers to learn how we can help.

Spring Safety Risks in Ontario

It’s spring in Ontario! After a long winter, it’s time to get out of the house and enjoy everything the province has to offer. As any personal injury lawyer will tell you, part of thoroughly enjoying a new season is being aware of the injury risks it presents. Spring weather may not be as dangerous as winter, but Ontarians should be careful, nonetheless.

“We’re in the middle of a transition from one season to the next,” said Kristan Hoffman, a consultant for Ontario Workplace Safety and Prevention Services (WSPS), in a release last year. “We are still getting some winter hazards, starting to see some summer hazards, while managing some unique spring hazards. It’s a unique time of the year.”

Winter, spring, and summer hazards all at once? Sounds like early April. Here are a few things to keep in mind this month and for the rest of the season.

Weather

Spring is a transitional season, meaning the weather tends to oscillate between winter cold and summer warmth. The rapidly changing air temperature can cause unpredictable storm events – you might experience snow on Monday, thunderstorms on Wednesday, and clear sunny skies on Friday.

The takeaway: plan ahead. Whether you’re heading out for a weekend hiking trip or leaving for your half-hour commute to work, preparing for inclement weather reduces your risk of injury.

Water, water everywhere

Sticking with the weather theme, spring is ground zero for high-water and flooding events. There are two key contributors to this problem: melting snow and ice, and heavy rains. Drastic temperature increases cause rapid melts that swell rivers and streams. When these events are followed by thunderstorms, rivers can overflow causing significant flooding.

High-water periods can cause a variety of problems, from property damage to personal injuries. Check your weather listings and local news regularly during the spring; both should issue warnings of potential flood conditions.

Dangerous driving

Spring is a deceptively risky driving season. Sure, road conditions aren’t as bad as during the winter, but ice patches and slippery surfaces are common until late in the season, and flooding or heavy rain can be just as problematic as an Ontario blizzard.

Spring’s high-water events and freeze-thaw cycles are also tough on the roads themselves, causing potholes, cracks, and debris. Be ready for these conditions when you’re on the road.

Slip and fall

Slip and fall injuries are dangerous throughout the year, spring being no exception. As we already mentioned, ice patches and slippery surfaces aren’t exclusive to winter. Wet and muddy conditions are common in stores, public stairways and parking lots during the spring, and can cause serious injuries. Take your time and wear sensible footwear when the weather turns sour this April and May.

Contact a personal injury lawyer

If you or someone you know suffers an injury this spring, contact Will Davidson LLP’s Oakville offices to arrange a free no-obligation consultation with an experienced personal injury lawyer.

Can social media affect the outcome of my personal injury case?

For better or for worse, social media has become a fulcrum of modern society, a daily reality that influences relationships, politics, and even personal injury lawsuits. Ontario’s court system has gradually come to acknowledge the critical role social media plays in Canadian life and is slowly moving toward a standard test for social media production, according to a November article by Michael McKiernan for Law Times.

McKiernan’s article examines a recent decision by Ontario Superior Court Master Donald Short in Isacov v. Schwartzberg, in which ex-professional ballroom dancer Maya Isacov sought $1-million in general damages and $2-million in special damages after the defendant’s vehicle ran over her foot. The accident prevented her from re-launching her career, prevented her from running, and prevented her from wearing high heels, she states. A psychologist added that the plaintiff had lost interest in going out with friends.

In the days leading up to the trial, a private investigator hired by the defendant unearthed social media posts showing Isacov socializing and standing in heels. The plaintiff’s lawyers asserted that the evidence should not be produced at such a late date, but Short disagreed.

“I am satisfied that in the present technological environment there is a need to include Facebook and similar on line data relevant to matters in issue in personal injury litigation in the appropriate schedules of each party’s Affidavit of Documents,” he wrote, later adding that the defendant’s failure to seek the documentation “added expenses to both sides that could have been avoided if appropriate questions were asked at the discovery of the plaintiff or prior to the mediation.”

In other words, the plaintiff in a personal injury lawsuit is compelled to submit all relevant social media content during discovery, and defendants are responsible to seek it. Questions on what qualifies as ‘relevant’ content remain to be resolved.

“The courts are moving toward articulating some kind of test for social media production, but there still isn’t a great deal of consistency in the factors considered or how they are weighted,” Maia Bent, former President of the Ontario Trial Lawyers Association (OTLA), told McKiernan.

The plaintiffs in a personal injury lawsuit must be aware that defence-side lawyers will seek any evidence to discount their claims for compensation, and so should exercise the utmost caution when posting content to Facebook, Instagram, Twitter, or any other social media platform.

If you or someone you know has been injured in an accident, contact Will Davidson LLP today to learn how we can help. Our experienced team of personal injury lawyers will provide guidance and advice throughout the personal injury lawsuit process, including regarding social media activity.

Contingency fees, explained

What is a contingency fee?

Contingency fee arrangements play an important role in the Canadian civil justice system. If you’ve researched personal injury lawyers in Ontario, you’re likely familiar with the term: contingency fee arrangements stipulate that lawyers will not receive payment until their client’s case has been successfully resolved.

Despite their prominent place in the legal system contingency fees are controversial and were prohibited in Canada until October 2004. Some critics believe contingency fees encourage lawsuits; others wonder whether personal injury lawyers should have a financial stake in the success of their clients’ disputes. Historically, contingency fees were banned in England, Scotland, Wales, and Canada due to the principle of ‘champerty and maintenance’: that strangers to a dispute should not fund legal costs as an investment for future rewards, according to a recent Ontario Trial Lawyers Association (OTLA) article. In some jurisdictions, including the Australian state of New South Wales, contingency fees are still banned.

The OTLA and the Law Society of Ontario (LSO) allow contingency fees based on the belief that they expand access to justice. The decision to permit them in 2004 was motivated in large part by the legal relationship between motor vehicle accident victims and insurance companies. Prior to the decision, plaintiffs were at an acute disadvantage in legal disputes involving complex issues – very few Canadians have access to the resources necessary to fund a lengthy legal battle with an insurance provider. The new rules allowed personal injury lawyers to take on complicated, arduous cases without accepting payment at the outset.

So, how exactly do contingency fees work? Simply: the client agrees that their lawyer will recover a percentage of the final settlement or award as payment. The percentage depends on the complexity of the case but should not exceed 50 per cent; the LSO prohibits lawyers from recovering more from the settlement than their clients.

Complex personal injury lawsuits are expensive to pursue. Contingency fees allow lawyers to work without cost restrictions; encourage lawyers to secure the maximum reasonable compensation for their clients; and allow the client to fund their recovery without the financial burden of simultaneously funding a lawsuit. Will Davidson LLP’s team of Oakville personal injury lawyers offers contingency fee arrangements for complex cases and believes the system provides improved access to justice for Ontario’s most vulnerable injury victims.

If you or a member of your family have been injured in an accident, contact the personal injury lawyers at Will Davidson LLP to arrange a free, no-obligation consultation. Our experienced team will assess the validity of your claim and provide guidance throughout the legal process.

Would a national pain strategy improve life for chronic pain patients?

 

Chronic pain is among the most complex and misunderstood disabilities in our society today. Because its effects are often outwardly invisible, those suffering from chronic pain have difficulty accessing the treatment or, when the condition is caused by an accident, the compensation they need. Many personal injury lawyers consider cases involving chronic pain among the most challenging they will take on.

Millions of Canadians suffer from chronic pain, and most are treated with a cocktail of medications which often includes dangerous opioid painkillers. Alternative forms of treatment, such physiotherapy, psychiatry and support groups, and medical marijuana, are available, but most are expensive and difficult for chronic pain patients to access.

As the opioid crisis in North America has worsened, patient advocacy groups like PainBC and the Canadian Pain Society have pushed for a national pain strategy to boost awareness of chronic pain, provide education for health professionals, and fund research. Personal injury lawyers believe that a greater public understanding of chronic pain could facilitate access to compensation and help patients get the treatment they need.

“We’re now at what one might call a tipping point, where the ducks are aligning,” Dr. Fiona Campbell, president-elect of the Canadian Pain Society, told the Toronto Star in March. “There’s more of an appetite and awareness about pain, which has probably arisen related to the opioid crisis, which is not the same as saying all people with chronic pain are taking opioids or affected by the opioid crisis. It just means it’s become more sentient in the public mind.”

The impacts of a serious brain or spinal injury on a person’s life are evident, and the people who suffer these injuries deserve sufficient compensation to fund their recovery. Individuals suffering from chronic pain also deserve access to treatment, but because their injuries are invisible they often face significant barriers to compensation. A better understanding of what chronic pain is and how it affects the lives of those who suffer from it could significantly improve this situation.

If you or a member of your family have been injured in an accident, contact the personal injury lawyers at Will Davidson LLP today to learn how our talented and experienced team can help. Whether you have suffered a catastrophic spinal cord injury or are suffering under the burden of chronic pain, our team can assess the validity of your personal injury claim and advise you of your next steps. Start your road to recovery today by calling Will Davidson LLP.

 

Image credit: Esther Max/Flickr

 

Safety tips for spring

3 driving tips for Spring Safety

Winter is over in Ontario, which means the most dangerous driving season of the year is behind us. However, as every personal injury lawyer knows, spring presents its own safety challenges. Today, we’ll review some safety tips to prepare you for the warmer months ahead.

More activity

As the weather outside improves, an increasingly diverse assortment of road users will join the daily commute. Car and truck drivers must readapt to sharing the road with vulnerable vehicles, including motorcycles and bicycles.

Drivers must also be aware that children, seniors, and pedestrians of all kinds will emerge in springtime. In Toronto, pedestrian fatalities have already reached a “crisis” point this year, causing significant concern among planners, safety advocates, injury lawyers, and politicians. As the streets become busier, drivers must slow down, avoid distraction, and commit to sharing the road in a responsible, respectful manner.

Changing asphalt conditions

New potholes are a common symptom of Ontario’s harsh winters. According to Global News, road crews repaired well over 110,000 potholes between January 1 and the end of March, which puts the city on pace to far exceed the annual average of 255,855 potholes per year.

In addition to costing the City of Toronto tens of millions of dollars annually, potholes are a common cause of traffic accidents. These accidents are often minor, causing more damage to vehicles than the drivers inside them, but in some cases they can cause serious personal injuries. In these situations, a personal injury lawyer can help you make a claim against the municipality.

Pedestrians should also exercise caution during the first weeks of spring, as sidewalks and walkways can also warp, crack, and chip, resulting in hazardous walking conditions.

Different weather challenges

Though heavy snow is a relative rarity, southern Ontarian springs are defined by turbulent, unpredictable weather, including temperature fluctuations that cause freeze-thaw cycles leading to slick roads. For this reason, many road safety experts advise against removing winter tires too early in the season.

Rapid temperature changes can also cause dense fog patches, which impede visibility. Make sure your car is equipped with fog lights and avoid driving if conditions are too dangerous.

Finally, overland flooding caused by heavy rain and melting snow can create particularly risky driving conditions. If possible, it’s best to avoid areas affected by flooding altogether.

 

If you or a member of your family is injured in a car accident this spring, contact Will Davidson LLP’s Oakville offices to speak with an experienced personal injury lawyer. Our team can help you understand the feasibility of your claim and guide you on your road to recovery.

 

Image credit: Caribb/Flickr

Canadian air, rail accidents rose in 2017

 

Each year, thousands of Canadians are killed or seriously injured in motor vehicle accidents. A personal injury lawyer spends a significant portion of their time responding to inquiries from and providing legal representation to victims of motor vehicle accidents.

However, traffic accidents are by no means the only source of injury in Canada. Indeed, the Transportation Safety Board (TSB), the federal agency responsible for advancing transportation safety across Canada, recently reported that 2017 was an above average year of incidents involving commercial aircraft. Ninety-four incidents occurred, more than the five-year average of 79 and well above last year’s total of 63. Nine of those incidents involved passenger aircraft, including Canada’s first fatal accident since 2011. Individuals who have been injured in aircraft accidents can seek legal advice from an experienced personal injury lawyer.

The Canadian Federal Pilots Association (CFPA) placed blame for the increase on cutbacks by the federal government, including less oversight and fewer in-person reviews by Transport Canada.

“They’re down to doing process inspections, which is sort of the third level of inspection that the department can do,” CFPA national chair Greg McConnell told the Canadian Press. “An analogy that I like to use is if you were going to buy a car, and you brought a mechanic with you, you would want the mechanic to check the whole car. You wouldn’t want the mechanic to just check the electrical system.”

The number of fatalities and serious injuries that occurred on Canadian railways also rose slightly last year. Between collisions at railway crossing and incidents involving trespassing, 72 people were killed and 44 seriously injured in 2017. Forty-five per cent of the deaths occurred in Ontario.

For comparison, 65 people were killed in 2016, 45 were killed in 2015, and 54 were killed in 2014. Serious injuries for those years ranged from 35 to 50.

This February, the TSB issues a call for governments and rail companies to improve safety at railway crossings following a report on the 2016 death of a disabled man in Moncton, New Brunswick. The man was struck and killed by a train after his wheelchair became stuck while he attempted to navigate a public railway crossing in the city’s downtown.

If you or someone you know has suffered an injury as a result of a railway accident, a car accident, or an accident involving an aircraft, contact an experienced personal injury lawyer like those working at Will Davidson LLP. Our team can assess the validity of your case and offer advice on how to proceed with your claim.

Avoid Injuries this Holiday Season

 

Even in the best of years, the holiday season is a stressful time. Between the kids being home from school, financial pressures piling up, and extended family pouring in from out of town, there’s not much time for relaxation. Now, imagine adding a serious injury to that mix; suddenly you’re in Clark-Griswold-from-ChristmasVacation territory. While it’s easy to laugh at Clark’s troubles on the big screen, holiday injuries are a reality that Ontario personal injury lawyers confront year after year.

Unsurprisingly, the most common accidents related to the holiday season are car crashes. The combination of worsening winter weather, more vehicles on the road, plenty of distractions, and alcohol-fueled holiday parties make December a dangerous month for driving. If you’re spending time on the road this holiday season, be especially cautious and avoid all alcohol, if possible.

Once you’ve navigated the treacherous holiday traffic, you’ll face more injury risks at home. According to Quartz, the United States’ Consumer Product Safety Commission (CPSC) estimates that roughly 1,700 Christmas-related injuries occurred between 2011 and 2015. In 2014, Metro News reported that 40 critical injuries and two deaths related to Christmas decorating had occurred over the previous ten years in Calgary alone.

The CPSC dataset included brief descriptions of the events causing the injuries, shedding light on the risks Christmas decorators face. For example: “33-year-old male standing on a stool hanging Christmas light when fell backwards striking head onto a TV stand,” or “44-year-old female was trying to throw out a Christmas tree, was unable to get the tree into the bin, [causing] her to fall.”

Ontario personal injury lawyers understand that serious injuries can result from these types of seemingly harmless scenarios. For example, Will Davidson LLP client Howard Milthrope suffered a serious head injury after tripping over a Christmas light cord.

“I went to see Howard to make sure they didn’t need anything, and Pat [Howard’s wife] and I started chatting and she told me about how the accident occurred,” said Will Davidson LLP Law Clerk Coleen Skynner. “I mentioned to her that [Will Davidson LLP Managing Partner Gary Will] might be able to help them in making sure that Howard had all the services that he needed once he was released from hospital.”

You can learn a little bit more about Pat and Howard’s case through their testimonial, available here: https://www.youtube.com/watch?v=wgu3Xp0XC04.

Speaking to the National Post, University of Calgary surgery professor Dr. Chad Ball cautioned that certain demographics – “slightly older, Caucasian men” – are particularly susceptible to these types of injuries. The solution? Ask for help when decorating your home. Enlist someone to hold your ladder and check for broken ornaments. If you have a bad back or feel unsteady on your feet, swallow your pride and ask someone younger to do the work.

Slip and fall accidents are also quite common during the holidays, for many of the same reasons that car crashes increase: bad weather, alcohol, and the presence of people who are unaccustomed to navigating slippery sidewalks. If you’re expecting guests this holiday season, ensure your driveway and walkway is clear of snow and well-salted.

Finally, children often suffer injuries over the holiday, often due to lack of supervision. Christmas trees and Christmas ornaments can be dangerous to kids, as can wrapping paper and new toys. Keeping an eye on children who are intoxicated by time off school, sugary treats, and the promise of presents isn’t always easy, but it will keep them safe.

If you or a member of your family suffers an injury this holiday season, contact the experienced Ontario personal injury lawyers at Will Davidson LLP. Our team can help you access compensation for you injuries and can guide you on your path to recovery.

 

Winterize your pool to avoid injuries

 

After a long, warm autumn the cold weather has arrived to stay in southern Ontario, which means the time has come to winterize your pool. Backyard pools pose a variety of safety risks during the winter months, so taking the time to carefully inspect your property and establish proper safeguards will reduce your risk of accidents and hopefully eliminate any need for an Ontario personal injury lawyer.

Here are some things to consider when winterizing your pool this year.

Children

Pools are dangerous to young children during the winter and summer months. It’s important to educate your kids about the dangers pools can present: make sure they understand and adhere to general pool safety rules and ensure they are confident and capable swimmers.

Toys and accessories

At the end of the swimming season, be sure to carefully remove clutter from the poolside and place all toys and accessories in your garage or shed. Obstacles around your pool present a tripping hazard, particularly as the days become shorter and darker.

If a person suffers an injury by tripping over an item left around your pool, they may have reason to contact an Ontario personal injury lawyer. Make sure your yard is clean, clear, and safe.

Winterization

Freezing can do extensive damage to your pool. Before sub-zero temperatures reach your city, you should drain some of the water from your pool, put away your diving board or slide, and drain your filter, pump, and chemical-feeding equipment.

Once your pool is ready for winter, make sure to cordon it off to prevent pets, children, or visitors from straying too close. Remember: just because your pool isn’t full doesn’t mean that it’s safe.

Cover

A strong, sturdy winter cover is an essential piece of safety equipment, particularly for in-ground pools. Make sure your cover conceals the entire pool and ensure that it is properly secured; you don’t want it to become dislodged during a winter storm.

Each year, make sure to inspect your cover for tears or holes. These can be caused by falling tree branches, heavy snow buildups, or even jagged pieces of ice.

Contact an Ontario personal injury lawyer

If you suffer an injury relating to a residential pool, consider contacting an Ontario personal injury lawyer for advice. The seasoned professionals at Will Davidson LLP have been serving clients in Oakville and the wider GTA for years, and have experience in a wide range of personal injury and accident cases. Call us today to set up a free, no-obligation consultation.

 

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