April 18, 2019

Goldscheider appeal: Orchestral manoeuvres in the court

The Court of Appeal has handed down judgment on an important appeal which is both positive and negative for entertainment venues and their insurers.

Whilst the appeal of the Royal Opera House was dismissed, the reasoning differed from the findings given at first instance in the High Court.  The Court of Appeal reversed the finding in respect of the wearing of hearing protection.

The decision will be viewed positively by entertainment venues and insurers. The consequences of the initial High Court judgment would have placed too arduous a requirement on venues to enforce the wearing of ear protection at all times.  It would have effectively enforced an artificially high standard which would not have been practicable.

Background

The Claimant, Christopher Goldscheider, alleged he suffered “acoustic shock” whilst rehearsing as a leading violinist with the Royal Opera House orchestra ("ROH") in 2012. The Claimant claimed that he is unable to listen to music and can no longer play professionally.

He alleged his hearing was damaged as a result of sitting directly in front of the brass section during rehearsals in the orchestral pit, the sound of which allegedly peaked at 137 decibels.

At first instance, Her Honour Judge Davies found that the Claimant had suffered from acoustic shock, brought on from a one-time exposure to excessive sound pressure.  The Claimant and the witnesses accepted that it was not reasonably practicable to wear the provided ear protection all the time because they were unable to hear other musicians.

Nonetheless, it was determined that Mr Goldscheider's condition had been caused by the failure of the ROH to enforce the mandatory wearing of hearing protection in the orchestra pit at all times, as well as other breaches of statutory duties under the Control of Noise at Work Regulations 2005.

The Defendant's subsequent application for permission to appeal was granted.

The Association of British Orchestras, Society of London Theatre and UK Theatre Association were also granted permission to intervene in support of the Defendant.

Court of Appeal

The Court of Appeal dismissed the appeal, upholding the initial decision on liability in favour of Mr Goldscheider, "albeit on narrower grounds" that those at first instance.

In respect of the breaches of duty found by HHJ Davies, the Court of Appeal agreed that the ROH had been in breach of the duties imposed by Regulations 5, 6(1) and 6(2) of the Control of Noise at Work Regulations 2005. 

In particular relating to Regulation 6, the alterations to the orchestral pit layout made following the injury "do not demonstrate liability retrospectively, but they do make it very difficult for the Defendant to prove that all reasonably practicable steps had been taken."

However, noting that the initial findings on the issue of hearing protection under Regulation 7 would have "caused considerable concern in the industry", the Court of Appeal "disagreed… that the risk assessment ought to have imposed more stringent requirement for the hearing protection," and set aside the finding of a breach of this Regulation.

The Court of Appeal accepted the ROH position that "it was not reasonably practicable for players in their orchestra pit to perform" if required to wear hearing protection throughout.

The decision on causation was also upheld, as it was found that "noise levels reduced at the rehearsal… when the pit configuration was changed", and the failure to do this sooner was the factual cause of the Claimant's injury.

On the issue of medical causation, the judgment found that there was no reason to revisit the original decision as "the judge was entitled to reach the conclusions she did."

What can we learn?

  • Entertainment venues will find some relief in the appeal court decision that it was too onerous a task to expect the ROH to enforce the wearing of hearing protection on a continual basis. However, it must be reiterated that the Court of Appeal agreed with the original decisions on the failure to give specific consideration during risk assessment to the expected type, level and duration of exposure, and the failure to reduce noise levels in accordance with the Regulations. We expect this finding will result in further discussions on the potential liability of entertainment venues.
  • Regarding the interventions, Lord Justice Leveson provided additional comments on the "cataclysmic scenario" it was believed that the initial judgment would bring about for music making in the UK. He disputed that this decision would have such a wide ranging impact, commenting that for most venues "space will not be the problem that it is at the ROH", but that it did "underline the obligation placed on orchestras to comply with the requirements of the legislation."
  • The Court of Appeal elected not to interfere with the first instance on the issue of the medical evidence despite accepting this to be "a close debate". The Court of Appeal made clear that the issue of medical causation "was precisely the type of dispute between experts that a trial judge is best placed to assess".
  • This can be interpreted as confirming that 'acoustic shock' is now an accepted concept, albeit the exact science behind it remains imprecise. The Claimant's medical evidence relied upon audiology studies which suggested that a decibel range of 82 to 120 was enough to cause acoustic shock. We expect that further satellite litigation on the levels at which acoustic shock occurs will result.
  • In the absence of further case law currently, it is now arguable that a single acoustic exposure of 82 decibels or more could result in a claim (subject to appropriate proof of causation); employers may now be expected to consider additional risks and exposures than previously thought.
  • This appeal finding will make plenty of noise but once again, it is understood that the Royal Opera House are considering making an application for permission to appeal to the Supreme Court.