Goldscheider v Royal Opera House – Implications for Hearing Loss Claims Within the Music Industry

In a recent landmark case, the Court of Appeal unanimously held that the Royal Opera House (ROH) Covent Garden failed to take reasonable steps to prevent injury to viola player, Christopher Goldscheider. 

At a September 2012 rehearsal of the Wagner opera, Die Walkure, Mr Goldscheider had been seated directly in front of the brass section of the orchestra.  The bell of a trumpet was immediately behind his right ear and noise levels reached 132 decibels – roughly equivalent to that of a jet engine.  His hearing was irreversibly damaged and he was unable to continue working as a musician.  He won his High Court case for damages for acoustic shock – a condition with symptoms including tinnitus, hyperacusis and dizziness.  It was the first time acoustic shock had been recognised as a condition which could be compensated by a court.

The ROH appealed, arguing that they had taken all reasonably practicable steps to reduce the risk of noise exposure, in 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.

The ROH also argued that acoustic shock does not exist and that Mr Goldscheider simply developed another condition, known as Meniere’s disease, at the same time as the rehearsal.  However, the Court of Appeal found that there were a number of further reasonably practicable steps which could have been taken to reduce Mr Goldscheider’s exposure to noise.  The court accepted that the failure to reduce his exposure to as low a level as was reasonably practicable was the factual cause of Mr Goldscheider’s injury.  It also held that 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 Court of Appeal accepted the ROH’s argument that it was not practical for musicians to wear hearing protection at all times during rehearsals and performances.

This case will have implications across the music industry.  It effectively brings an orchestra space – or any live music venue for that matter – into line with other working environments where employees are exposed to noise, such as factory floors for example.  Up until now, there appears to have been a misconception within the music industry that orchestra spaces and live music venues are exempt from noise protection.  This misconception appears to have arisen partly due to a defence available in England and Wales under section 1 of the Compensation Act 2006.  This effectively said that as the product (music in this case) was of high artistic value, some noise damage to those producing it was acceptable.

However, this judgment puts that misconception to bed.  Employers and organisers will now have to ensure that they are taking all reasonably practicable steps to prevent injury resulting from noise during rehearsals and events.