APPEALED FROM: Fishpool v Incat Tasmania Pty Ltd [2012] TASSC 80

Workers Compensation - Alternative rights against employer and/or third parties and consequences thereof -Actions for damages against employer - Statutory constraint on actions for damages - Generally - Worker required to make election to claim damages from employer before commencing proceedings - "Employer" included principal liable to pay compensation in contract labour hire situation - No claim for compensation against principal but proceedings for damages brought without prior election - Whether principal an employer for the purposes of the election provision - Whether election required.

Morris v George [1977] 2 NSWLR 552, applied.

Geddes v Dunfermline District Committee [1927] SLT 571; [1927] BWCC 815; Herd v Summers (1905) 7 F 870, not followed.

Workers Rehabilitation and Compensation Act 1988 (Tas), ss25, 29(1), 32, 80A, 132, 138AB, 134.

Judgment Number: [2013] TASFC 6

1 I agree with Estcourt J. The appeal should be dismissed. However, I want to make a few additional comments. The relevant provisions of the Workers Rehabilitation and Compensation Act 1988 (the Act), are set out in Estcourt J's reasons and there is no need for me to repeat them in any detail.

2 I do not think that there can be any doubt that the liability of "any person ... under section 29" as referred to in s132 of the Act is the inchoate or foundational liability which arises on the suffering of an injury within the meaning of s25. That provision provides that on the suffering of an injury in particular circumstances, "the employer is, ... liable to pay compensation in accordance with this Act ...". To put s29 in its context, it appears, as does s25, in Division 1 of Part 3 headed "Entitlement to Compensation. Section 29(1) provides that in certain circumstances, the person described as "the principal", is "liable to pay to a worker any compensation ... that he would have been liable to pay if that worker had been immediately employed by him". [Emphasis added.]

3 Sections 25 and 29 refer to a liability "to pay compensation". This is to be contrasted with s32 which provides a bar to an entitlement to compensation unless certain things are done. Further, ss67, 69, 71, 75 and 76 provide for the types of compensation payable where an employer is liable under s25. With the exception of ss75 and 76 (expenses for medical and other services, and travelling), those provisions speak of "the compensation payable" in specified circumstances.

4 That provisions such as s25 create a form of inchoate or foundational liability has long been recognised. This was pointed out by Underwood J (as he then was) in State of Tasmania v Parsons [2002] TASSC 59; (2002) 11 Tas R 26 in part of the passage at 34 [20] not reproduced by the primary judge or Estcourt J. Underwood J referred to Ogden Industries Pty Ltd v Lucas [1968] UKPCHCA 1; (1968) 118 CLR 32 at 42; Moakes v Blackwell Colliery Co [1925] 2 KB 64; Kraljevich v Lake View & Star Ltd [1945] HCA 29; (1945) 70 CLR 647; Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188 at 202, 203.

5 A liability under s29 can, in my view, only refer to the type of liability which arises under s25, and not the crystallised liabilities to pay particular forms of compensation which arise under ss67, 69, 71, 75 and 76, when certain things have happened. In this case, the following observations of the primary judge at [15] of his Honour's reasons are, in my view, clearly correct:

"When s29 makes a principal liable to pay compensation, it imposes the same liability that s25 imposes on an employer. When the definition of 'employer' in s132 uses the word 'liable', it refers to the same liability that is imposed by ss25 and 29. I think it is quite clear that those sections are not concerned with the sorts of obligations that arise when compensable expenditure is incurred following an injury, nor with the sort of situation that arises when an injured worker makes a claim for compensation pursuant to s32(1)(b). Those sections are concerned with the sort of inchoate liability that arises immediately at the time of a worker's injury - a liability to pay compensation if and when death or incapacity for work results, or compensable expenditure is incurred, and subject to compliance with s32".

6 I now want to mention s80A. The appellant's reliance on this provision seemed to increase during the course of oral argument in response to questioning from the bench. The appellant's argument is that s80A means that where an initial claim for any type of compensation referred to in the Division is made, thereafter no such claim can be made against a different employer. It is true of course, that a principal under s29 would be an "employer" for the purposes of s80A.

7 I do not want to be taken as acknowledging any merit in the argument. The section provides that for the purposes of the Division "a claim for compensation is a claim for compensation ... in respect of any injury for which the worker has not previously made a claim for compensation against that or any other employer". The division is Division 1 of Part VII and is entitled "Provisions relating to weekly payments and other benefits". The heading to Part VII is "Payment of Compensation and Other Benefits". Clearly s80A simply defines the meaning of "a claim for compensation" only for the purposes of the Division in which it appears. Those purposes appear in ss81, 81AA, 81A, 81AB and 81AC. It is only those sections which contain a reference to a claim for compensation.

8 Those sections govern and regulate when weekly payments are to be commenced, the effect of making weekly payments, what needs to be done by an employer who disputes liability to pay compensation by way of weekly payments or benefits under Division 2 of Part VI, the effects of a failure to dispute liability as prescribed, and the powers of the tribunal where an employer is taken to have accepted liability.

9 The balance of the sections in the Division deal with rights to compensation of prisoners and non-residents, entitlements to paid holidays during incapacity, and the crediting of sick leave, annual leave and long service leave entitlements in periods for which a worker is entitled to weekly payments. Further sections prescribe the circumstances in which an employer may terminate or reduce a weekly payment, provide for cessation of payments on account of age, the review of weekly payments and the non-assignability of weekly payments. The five sections which I specifically identified by their numbers, above, provide for the timely resolution of an initial claim for compensation where the claim is for weekly payments of compensation, or compensation provided for in Division 2 of Part VI compensation (the costs of medical and other services including travelling). A dispute as to liability for compensation of a specified type can include a dispute as to the foundational liability under s25.

10 I think it is clear that s80A cannot have the effect contended for by the appellant. Section 80A was obviously intended to overcome difficulties which were perceived to arise from this Court's decision in G L & V N Barber Pty Ltd v Ryan [1999] TASSC 5; (1999) 8 Tas R 308. The section was designed to limit the operation of s81A and to prevent the repetitive operation of the scheme where, for instance, further medical certificates supporting incapacity, or further medical accounts were submitted to an employer. (See also s69(13) which was inserted by the same amending Act as inserted s80A.) The section should be read literally. Relevantly to this discussion, what it does mean is that any subsequent claim against a different "employer" for the relevant forms of compensation would have to be dealt with by way of other provisions in the Act: see s42 and the associated provisions in Part V.

11 I would agree with Estcourt J's observation that even if the section did have the effect argued for by the appellant, it would not prevent a subsequent claim against a principal for compensation. However, that subsequent claim would have to be for compensation other than weekly payments and compensation under Division 2 of Part VI; that is, a claim for compensation for death and permanent incapacity under ss67 and 71 in Division 1 of Part VI.

12 The last, and related, matter concerns the respondent's reliance on s29(5) of the Act. This was also a point not raised in written submissions but which was pursued in answer to the appellant's submission about s80A, and in response to a question from the Bench. I am not quite sure I understand why it was pursued. Because of the view I take of the s80A point, it is unnecessary to expressly decide the issue for the purposes of this appeal. However, I would agree with Estcourt J's observation that the provision does not create an election in a worker; it is an enabling provision but one which prevents double recovery in respect of compensation paid: Morris v George [1977] 2 NSWLR 552.

13 I agree with the reasons of Estcourt J and would also dismiss the appeal

14 The appellant has appealed, on two grounds, from a decision of Blow J (as he then was), determining a preliminary issue related to the respondent's defence in action No 254/2008.

15 First, it is contended that the learned primary judge erred in law in finding that the respondent was an "employer" for the purposes of the Workers Rehabilitation and Compensation Act 1988, s138AB, ("the Act").

16 Second, it is contended that the learned primary judge erred in law in finding that the appellant was required to lodge with the Workers Rehabilitation and Compensation Tribunal ("the Tribunal"), an election to claim damages against the respondent prior to commencing such an action.

17 The appellant was employed by the TESA Group Pty Ltd ("TESA"). That company was in the business of hiring labour to other companies, among them the respondent. On 6 April 2005 the appellant was injured in the course of his employment with TESA whilst working at the respondent's premises.

18 The appellant made a claim for compensation under the Act against TESA for which liability to pay was not disputed, and payments of compensation were made. The appellant made no claim for compensation against the respondent.

19 On 31 March 2008 the appellant commenced action No 245/2008 in this Court, claiming damages for personal injury against the respondent without first having lodged an election to claim damages with the Tribunal, as was required by s138AB(1) of the Act.

20 Section 25(1) of the Act provides as follows:

(a) a worker suffers an injury, not being a disease, arising out of or in the course of his employment; or

(b) a worker suffers an injury, which is a disease and to which his employment contributed to a substantial degree, within the meaning of section 3(2A) -

his employer is, except as is otherwise provided by this Act, liable to pay compensation in accordance with this Act -

(d) if the injury results in the death of the worker, to the persons who are the worker's dependants at the date of his death or who would, but for any incapacity due to the injury, have been his dependants."

21 Section 29 of the Act provides as follows:

"29(1) Where a person (in this section referred to as 'the principal') in the course of, or for the purposes of, his trade or business contracts with any other person (in this section referred to as 'the contractor') for the execution by or under the contractor of the whole or any part of any work undertaken by the principal, the principal is liable to pay to a worker employed in the execution of the work any compensation under this Act that he would have been liable to pay if that worker had been immediately employed by him."

22 Section 32(1) of the Act provides as follows:

"32(1) Subject to this Act, a person shall not be entitled to compensation under this Act for an injury to a worker unless -

(a) notice of the injury has, as soon as practicable after the occurrence of the injury and before the worker has voluntarily left the employment in which he suffered the injury, been given to the employer of the worker or a person referred to in section 33(1)(b); and

(b) a claim for compensation with respect to the injury has been made within 6 months after the date of the occurrence of the injury, or where the injury results in the death of the worker, within 6 months after the date of the death."

23 Section 132 in PtX of the Act provides as follows:

"132 In this Part, unless the contrary intention appears

'employer', used in relation to an injury suffered by a worker, includes any person who, in respect of that injury, is liable, under section 29, to pay compensation or to indemnify any other person for any compensation paid by that other person."

24 Section 138AB(1) and (2) in PtX of the Act at the relevant time provided:

"(1) Before commencing proceedings in court for an award of damages, a worker who intends to seek damages against an employer must lodge with the Tribunal an election to claim damages

(2) A worker is not to make an election unless the degree of his or her permanent impairment is agreed by the worker and the employer, or determined by the Tribunal, to be a percentage of the whole person of not less than 30%."

25 The respondent contended that it was an "employer" for the purposes of s138AB; that the appellant did not lodge an election under that section with the Tribunal before commencing proceedings; and that his action against it must therefore fail.

26 The appellant argued that the respondent did not fall within the definition of "employer" in s132 of the Act. He relied on s32(1) to contend that the respondent was not "liable" under s29 to pay compensation in respect of the appellant's injury because the appellant had never claimed compensation from the respondent.

27 The learned primary judge held that s32(1) is concerned with entitlement, not liability and that the word "liable" is used in the Act to refer to the sort of inchoate liability that an employer incurs from the time a worker suffers an injury arising out of, or in the course of, his or her employment. His Honour set out what he referred to as the fundamental provision imposing liability on employers to pay compensation, namely s25(1), and continued:

"14 Of course an employer who is liable to pay compensation does not actually have to pay any money unless and until death, incapacity or expense results from the worker's injury. Those consequences are the subject of ss67, 69 and 75 respectively. In an uncontroversial passage in his dissenting judgment in State of Tasmania v Parsons [2002] TASSC 59; (2002) 11 Tas R 26 at par[20], Underwood J (as he then was) said the following:

'20 Although the workers compensation law in this State has undergone some substantial changes since the enactment of the Workers' Compensation Act 1927, the fundamental principle that has underpinned the law of workers compensation for many years remains unaltered. That principle is that upon the happening of an event prescribed by the Act, s25, the employer incurs liability "to pay compensation in accordance with [the] Act". This liability is inchoate until the occurrence of one or more of the events prescribed by the Act, eg, ss67, 69 and 75. In addition, the Act, s32 et seq, prescribe certain conditions precedent that must be fulfilled prior to the employer's liability arising.'

15 When s29 makes a principal liable to pay compensation, it imposes the same liability that s25 imposes on an employer. When the definition of 'employer' in s132 uses the word 'liable', it refers to the same liability that is imposed by ss25 and 29. I think it is quite clear that those sections are not concerned with the sorts of obligations that arise when compensable expenditure is incurred following an injury, nor with the sort of situation that arises when an injured worker makes a claim for compensation pursuant to s32(1)(b). Those sections are concerned with the sort of inchoate liability that arises immediately at the time of a worker's injury - a liability to pay compensation if and when death or incapacity for work results, or compensable expenditure is incurred, and subject to compliance with s32."

28 In the result the learned primary judge held that it followed that the respondent was an "employer" for the purposes of s138AB, that the appellant had not complied with s138AB(1) by lodging an election to claim damages prior to commencing his action, and that it followed that s138AB(1) barred the appellant from maintaining his action. His Honour made a determination in favour of the respondent accordingly.

29 As to the first of the two grounds of appeal, counsel for the appellant, Mr Grueber, maintains the contention advanced before the learned primary judge, namely, that s32(1) of the Act provides that a person shall not be "entitled" to compensation under the Act for an injury to a worker until a claim for compensation is made, and that accordingly the liability to pay compensation referred to in s29 does not arise until a claim for compensation is made against the principal. Until that time, counsel argued, relying on the passage from the judgment of Underwood J (as he then was) set out above, there were "conditions precedent that must be fulfilled prior to the employer's liability arising".

30 Counsel further contends that PtVII of the Act contemplates that there is only one initial claim giving rise to liability to pay compensation in respect of an injury, and that when the appellant made a claim for compensation against TESA there was thereafter no liability on the part of the respondent.

31 Counsel argues that the Acts Interpretation Act 1931, s8A, requires that an interpretation that promotes the object of the Act as beneficial legislation is to be preferred to one that does not, that the purpose of s29 is to prevent a true employer from escaping liability by hiring labour, and that the object of s138AB is to restrict the rights of workers to claim damages to the advantage of employers and their insurers.

32 As to the second ground of appeal, counsel for the appellant points to the heading of PtX of the Act which reads, "Concurrent Rights to Compensation and Damages". He advances the argument that the language of that heading contemplates that the parties to a claim for compensation and the parties to a claim for damages are identical, and as a result the obligation on a worker to make an election is only as against the party who is both the compensation payer and the tortfeasor.

33 For the proposition that the obligation under s138AB(1) to lodge an election only applied in respect of a claim for an award of damages made against the "compensation payer", counsel for the appellant placed reliance on a passage from the judgment of Evans J in Skilled Engineering Limited v Glaxo Wellcome Australia Pty Ltd [2005] TASSC 86; (2005) 15 Tas R 88 at [10]. There his Honour said that while the term "the employer" includes both a principal and an employer, the term as used in s134(1) of the Act (which deals with claims for indemnification), refers interchangeably to the employer or the principal who has paid the compensation that is the subject of the claim for an indemnity.

34 Finally it is contended on behalf of the appellant that to require an election to be lodged by a worker in respect of a negligent principal against whom no claim for compensation has been made, would result in the anomalous outcome that, where no such election is made, the negligent principal must indemnify or contribute to compensation and damages paid by a contractor/employer, yet is protected from a claim for the same damages by the injured worker.

35 To my mind there is no doubt arising as to the interpretation of s29. The word "liable" used in that section cannot be understood to refer only to a liability that has actually crystallised or fallen in. It refers, as was held, correctly in my view, by the learned primary judge, to a contingent liability that arises from the time a worker suffers an injury of a type that is compensable under the Act. It is, as was noted by Underwood J in State of Tasmania v Parsons (supra) at [20], a liability that is "inchoate" until the occurrence of one or more of the events prescribed by the Act.

36 I do not accept the argument that s32 of the Act prescribes conditions precedent that must be satisfied prior to an employer's contingent, as opposed to actual, liability arising. In my view, Underwood J in the passage from State of Tasmania v Parsons, set out above, and relied upon by the appellant for that proposition, was referring to the employer's crystallised liability to make immediate payments of compensation under the Act. So much is clear from the characterisation by his Honour, earlier in the same passage, of the liability arising under s25 as "inchoate".

37 The liability contemplated by s29 of the Act may of course never materialise or actualise, and it may remain inchoate or contingent until such time as a worker has exhausted all of his rights and entitlements under the Act. It nonetheless remains properly described as a liability until that time.

38 That the appellant made his claim for compensation against TESA, and that the claim was not disputed by TESA, does not, in my view, have the result that the appellant had thereupon exhausted all of his rights and entitlements under the Act as against the respondent.

39 Section 80A of the Act provides that "a claim for compensation", for the purposes of DivI of PtVII of the Act, which deals with "payments of compensation and related matters", is a claim for compensation by a worker against an employer in respect of an injury for which the worker has not previously made a claim for compensation against that or any other employer. Division I is headed "Provisions Relating to Weekly Payments and Other Benefits", and the sections contained in it deal with weekly payments and benefits with respect to paid holiday and sick leave, annual leave and long service leave. Thus the result might be that no second claim for weekly payments or paid holidays or sick leave entitlements, for example, could be made against a principal if the contractor/employer perhaps ceased to exist, or became bankrupt, or was placed in liquidation. However, even if the section did have that effect, it would not, in my view, foreclose a subsequent claim against a principal for such benefits as compensation for permanent impairment under s71 of the Act, or compensation for medical services under s75 which are provided for not in Div1of PtVII but in DivsI and II of PtVI.

40 Counsel for the respondent, Mr Wilkins, submitted however, during the course of his oral argument, that s29(5) of the Act, which provides:

"Nothing in this section shall be construed as preventing a worker recovering compensation under this Act from the contractor instead of the principal." (Emphasis added)

41 by employing the word "instead", had the effect of creating an election in a worker, such that upon him or her receiving a payment of benefits in respect of a claim for compensation made against a contractor/employer, any liability in a principal to pay any further compensation in respect of the relevant injury was extinguished.

42 Were that to be so, then in the present case, the inchoate liability in the respondent contemplated by s29 would have ceased to exist upon any payment of compensation to the appellant by the appellant's employer as, having made his election to claim compensation against his employer, and having been paid compensation by his employer, the appellant would thereby have exhausted all of his rights and entitlements against the respondent in respect of any payment of compensation of any kind under the Act.

43 Ironically, the result of that would be that, at the relevant time, namely the time of commencing proceedings in court for an award of damages against the respondent, the appellant would not have been required to lodge an election to claim damages with the Tribunal. The respondent would not at that time have been an "employer" for the purposes of s138AB(1) of the Act because the extended definition of the word "employer" in s132 of the Act would at that time have had no application to the respondent, as it would not then have been a person "liable under s29 to pay compensation" to the appellant.

44 In the absence of authority I would not accept that s29(5) of the Act has the effect suggested by counsel for the respondent. In my view that subsection is merely for the purpose of making clear that the provision of the right to claim compensation against a principal is not in substitution for, or in removal of, a right against a worker's contractor/employer.

45 However counsel for the respondent provided the Court with two cases upon which he relied for the proposition that the use of the word "instead" in s29(5) of the Act means that a worker must make an election to proceed against either the principal or the contractor/employer. The authorities were Geddes v Dunfermline District Committee [1927] SLT 571; [1927] BWCC 815 and Morris v George [1977] 2 NSWLR 552.

46 In the former case the Court of Session (Scotland) held that a workman, having received compensation from a contractor for several months, had made his election and was not entitled to claim further compensation from the principal. Lord Blackburn, at 823, and Lord Sands, at 825, relied upon an earlier decision of the Court of Session in Herd v Summers (1905) 7 F 870 as deciding that joint and several liability as between principal and contractor was not contemplated by the provisions of the Workmen's Compensation Act (1925), that their liability was in the alternative, so that a workman was required to elect against which one to claim and, that having done so, was bound by that election once and for all.

47 Morris v George (supra) was concerned with the construction of the Workers Compensation Act 1926 (NSW), s6(3)(c), which was for present purposes in identical terms to s29(5) of the Act. Glass JA, with whom Moffitt P and Hope JA agreed, expressed the view at 576 that the reasoning in Herd v Summers (supra) was contaminated by procedural assumptions that were no longer applicable since the introduction of tortfeasors legislation abrogating the rule in Brinsmead v Harrison (1872) LR 7 CP 547. That rule provided that judgment against one joint tortfeasor releases the other. At 577 A Glass JA said:

"I do not think that the section should be construed in such manner as will accommodate the assumptions that tortfeasors cannot be sued together and, if sued separately, judgment against one releases the other."

48 At 577 B, after discussing the language of s6(3), Glass JA continued:

"There is nothing here which stipulates that an award against one party excludes an award against the other. But it was submitted that s6 (3) (c) upon its proper construction provides that there can be only one award against employer or principal. The first step involves the submission that 'a worker recovering compensation' meant a worker obtaining an award. The second step by stressing 'instead of' argued that the obtaining of awards against the contractor and the principal were mutually exclusive rights. I do not find either step in the argument convincing."

49 Then, after discussing the meaning of a "recovery of compensation", Glass JA continued at 577 D:

"So understood the section makes two things clear. The first is that the liability of the employer continues to exist and may be enforced notwithstanding the concurrent liability of the principal. The second is that when the worker has been paid compensation by the employer this operates to extinguish the liability of the principal."

50 In speaking of the worker having been paid compensation by the employer operating "to extinguish the liability of the principal", Glass JA was plainly conveying that the liability of the principal was extinguished to the extent of the payment by the principal. To suggest otherwise ignores his immediately preceding reasoning and what his Honour went on to say at 577 F, namely:

"I am of the opinion that s6(3) on its proper construction forbids neither duality of application nor duality of awards. What cannot be obtained, and this is prohibited by general principle, is double satisfaction of awards. Any recovery under an award against the principal will take effect, pro tanto, as a recovery under the award against the employer, and vice versa."

51 I see no basis for not respectfully adopting the reasoning of Glass JA and applying the decision in Morris v George. In my view, although it is not provided for procedurally, there is nothing in the Act that would prevent a worker from making a claim for weekly compensation against his or her contractor/employer and subsequently, if the need arose, also making a claim for compensation, for example, for permanent impairment or medical services against a principal with a subsisting inchoate liability under s29(1). Accordingly, I reject the submission of counsel for the respondent to the contrary.

52 It follows that the appellant remained under an obligation to lodge an election with the Tribunal before commencing proceedings for an award of damages against the respondent.

53 I do not accept the submission of counsel for the appellant that there is scope for the operation of the Acts Interpretation Act, s8A. The object and purpose of s138AB is indeed, as was advanced in submissions by counsel for the appellant, to restrict the rights of workers to claim awards of damages from employers, and that is what it achieves. The term "employer" is defined by the Act, s132, so as to specifically extend to a person who is "liable" to pay compensation under s29 of the Act.

54 I do not accept the submission by counsel for the appellant that the heading of PtX of the Act contemplates that the parties to the claim for compensation, and the parties to the claim for damages, will be the same person, with the result that the only obligation on a worker to lodge an election under s138AB(1) is in respect of a claim for damages against a person who is both the "compensation payer" and the tortfeasor. The word "concurrent" is descriptive only of the worker's rights, namely rights to compensation, and rights to damages and the pre-conditions that arise in the event of the concurrency of those rights. The language of the heading does not circumscribe a concurrency of the persons against whom those rights are exercised or exercisable. Although the heading of PtX is deemed by the Acts Interpretation Act, s6(2), to be part of the Act, the language of the section is not, in my view, inconsistent with the heading, and the two may be read together without difficulty (cf Ragless v District Council of Prospect [1922] SAStRp 28; [1922] SASR 299 at 311 - 313).

55 Nor do I accept that support for the appellant's submission is found in the judgment of Evans J in Skilled Engineering Limited v Glaxo Wellcome Australia Pty Ltd (supra). As was pointed out by counsel for the respondent in his written submissions, his Honour was merely conveying there that the term "the employer" in the context of the right to recover an indemnity under s134 of the Act for compensation paid, means the actual compensation payer, be it principal or employer, and that unless the terms were interchangeable it could give rise to the absurd result that an employer could claim indemnification in respect of compensation paid, not by the employer, but by the principal.

56 Finally, I do not agree that to require an election to be lodged by a worker in respect of a negligent principal against whom no claim for compensation has been made, results in an anomalous outcome, namely, that where no such election is made the negligent principal must indemnify or contribute to compensation and damages paid by a contractor, yet is protected from a claim for the same damages by the injured worker. The object and purpose of s138AB was to restrict the rights of workers to claim awards of damages from employers, and there is no reason to exclude from that embrace a principal with a contingent liability to pay compensation under the Act when that principal is, by definition, an employer. The obligation of that principal, if negligent, to indemnify the contractor is quite a distinct consideration.

57 It follows that, for the reasons I have expressed, I would dismiss the appeal.