Implications for hearing loss claims - Goldscheider v Royal Opera House - Lexology

In a landmark judgement the Court of Appeal have unanimously agreed the Royal Opera House (ROH) Covent Garden failed to take reasonable steps to prevent injury to viola player Christopher Goldscheider during a 2012 rehearsal of the Wagner opera, Die Walkure. As a result of his injury Mr Goldscheider suffered acoustic shock and was left unable to work as a musician.

On 1 September 2012 Mr Goldscheider was seated at the 5th desk of the viola section, directly in front of an 18 piece brass section. Noise levels at points during the rehearsal reached decibel levels roughly equivalent to that of a jet engine. The ROH argued they had taken all reasonably practicable steps to reduce the risk of noise exposure, pointing to the fact that:

• the risks posed to orchestral players by noise exposure had been carefully considered;
• a variety of hearing protection had been provided; and
• training and instruction had been provided to players.

However the Court found there were a number of further reasonably practicable steps which could have been taken to reduce Mr Goldscheider’s exposure. Following the incident the configuration of the orchestra during rehearsals was altered, resulting in a significant reduction to noise levels. The ROH argued this reduction was due to a quieter section of the piece being rehearsed and that it was a stop/start rehearsal. However these arguments were not supported by evidence and the ROH was found in breach of the Control of Noise at Work Regulations 2005.

The Court accepted the failure to reduce the claimant’s exposure to as low a level as was reasonably practicable was the factual cause of Mr Goldscheider’s injury. The ROH argued that acoustic shock does not exist and that Mr Goldscheider had simply developed Meniere’s disease, a condition which results in symptoms similar to those he complained of, at the same time as the rehearsal. However again the Court of Appeal held the High Court had been right, on the basis of the evidence presented, to conclude the claimant had suffered acoustic shock.

Although the High Court’s ruling was upheld, it was relaxed slightly. The Appeal Court accepted the ROH’s argument that it was not practical for players to wear hearing protection at all times during rehearsals and performances.

The full implications of this judgment for the music industry are not yet clear. Until now there appears to have been an industry myth that live music venues such as orchestra pits were exempt from noise regulation. This appears to have been fuelled at least in part by a defence available in England and Wales under section 1 of the Compensation Act 2006 which suggests that where the product, in this case music, was of a high artistic value then some level of noise exposure was acceptable. However this judgement makes it clear that an orchestra space should be treated no differently from a factory floor where noise is a by-product of the work. The judgement therefore has implications for other sectors not traditionally affected by noise at work claims. Employers should take note of the decision and consider how it might impact their business activities. Insurers should consider historic and current risks that might be impacted by the decision.

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