Goldscheider v Royal Opera House Covent Garden Foundation (& 3 Interveners)
First Court of Appeal case to have considered:
i) Hearing loss/disability case brought under the Control of Noise at Work Regulations 2005.
ii) Acoustic Shock as compensatable injury.
iii) Reasonable practicability of protecting musicians from harmful noise.
iv) As far as we know whether the Compensation Act should release employers from responsibility for breach of duty.
Claimant wins case that the Royal Opera House (ROH) did not do all that was reasonably practicable to reduce noise at source and that although his particular injury was not forseeable, it was forseeable that some injury would be likely (whatever the label applied to it) and thus the Judge was right to Order ROH to pay compensation.
Christopher Goldscheider, former Viola Player at the Royal Opera House. Hearing irreversably damage on 1st September 2012 by unexpectedly loud noise of 132 decibels from the bell of a trumpet immediately behind his right ear, and not been capable of working since due to hyper sensitivity to noise as part of symptoms referred to as Acoustic Shock.
Chris Fry of Fry Law, assisted in the Appeal by Carrie Clewes
Theo Huckle QC, of Doughty Street Chambers
Jonathan Clarke of Old Square Chambers
Royal Opera House Covent Garden Foundation
Nigel Lock, BLM
David Platt QC, of Crown Office Row
Alexander Macpherson of Crown Office Row
Interveners in support of the Defendant:
Association of British Orchestras
Society of London Theatre
UK Theatre Association
Judgment in the High Court: HHJ Nicola Davies DBE, 28 March 2018. Finding for Mr Goldscheider.
Appeal in the Court of Appeal: LJ McCombe, LJ Bean, Sir Brian Leveson President of the Queens Bench Division, 17 April 2019. Unanimous decision for Mr Goldscheider.
Reasonable Practicability (Regulation 6 of the CONAW Regs 2005)
HHJ Nicola Davies originally found that ROH failed to do everything reasonably practicable to remove the risk of any form of noise injury – Para 31.
And that ROH should obtained live time readings. Para 31.
The Court of Appeal has found at Para 38 – “In our view the ROH fell well short of establishing the defence [that they had done all reasonably practicable to reduce noise at source] at Trial.”
The ROH failed to take all steps reasonably practicable to reduce noise (without hearing protection). They were therefore in breach of statutory duty to protect their musicians from the risk of hearing damage.
The Compensation Act Defence (Does the artistic value of the product mean that collateral damage is acceptable) also fails.
Para 43…. It might have succeeded if…
“…. the evidence had demonstrated that nothing more could have been done to reduce noise without the ROH having to abandon the Wagner repertoire entirely. But we are a long way from that in the present case.”
In other words, if an employer can satisfy the Court that nothing more could be done to ‘turn the volume down’ having taken all reasonable steps, then it may be free from liability to their employees.
Personal Hearing Protection
It was not reasonably practicable to have required musicians to wear hearing protection at all times. See Para 51, “There was a consensus at the Trial that it was not reasonably practicable for members of the Orchestra to wear PHPs throughout performances or rehearsals, since to do so during quiet passages of the music would mean they could not hear the music sufficiently clearly.”
Para 58, “… there was a breach in that the risk assessment undertaken before rehearsals began did not include specific consideration of the type and duration of the exposure including peak sound pressure and there was no review of the risk assessment as the rehearsals went on.”
This is significant because it sets out that a risk assessment is necessary, should be comprehensive and should be dynamic enough to be able to respond to a changing situation. This extends beyond the music industry.
“In our Judgment, the Judge was entitled to reach the conclusions she did as to the medical outcome of this sound exposure experienced by the Respondent [Goldscheider] and her reasons for doing so are not capable of being sensibly undermined on this appeal.” Para 79.
Public Policy: Key Note from Sir Brian Leveson:
“What this case does underline is the obligation placed on Orchestras to comply with the requirements of the legislation (having had two years within which to prepare). It emphasises that risk of injury through noise is not removed if the noise – in the form of music – is the deliberate and desired objective rather than an unwanted by-product (as would be the case in relation to the use of pneumatic machinery) all of which was recognised in the very carefully drawn document Sound Advice. The national and international reputation of the ROH is not and should not be affected by this Judgment.” Para 84.
Response from Chris Goldscheider:
“I am grateful to the Court for acknowledging that more should have been done to protect me and other musicians from the risk of permanent and life changing hearing problems. We all want to find a way to participate and share in the experience of live music in a safe and accessible way and I hope that the guidance which the Court of Appeal has given in my case will help others. I hope that the Royal Opera House will now support me to get on with rebuilding my life.”
Comment from Chris Fry:
“Live music, and quality artistic output can be ruined by turning sound into noise. I can choose to turn volume and other settings down if I listen in private, but no such luxury existed for Chris Goldscheider and many other musicians who are required to have someone else dictate the noise they are exposed to at work. The most recent noise legislation in this country is already 14 years old, and its requirements to reduce noise to the lowest level practicable are common sense. Hearing protection is not always practicable and was never intended to be the complete solution, whatever the working environment.
The Court’s emphasis on reducing noise at source will have implications in live music, entertainment and sports across various jurisdictions where there is the potential for sudden and unexpected noise. In this case the Court has strengthened the need for good quality and dynamic risk assessments. This should help us to enjoy events whilst reducing the risk of harm.
I understand that the Royal Opera House is considering an appeal of this decision, but I encourage them to recognise that at the heart of this case is a man whose career and family life have been irretrievably changed by their own failings. I urge them to do the right thing and have regard to the fact that four senior Judges have now found in his favour.”