Goldscheider, C v Royal Opera House
The Court of Appeal has today handed down judgment in the keenly awaited appeal by the Royal Opera House, represented by BLM, against the 2018 decision in favour of the respondent Christopher Goldscheider, following injury to his hearing being said to have occurred during a rehearsal in the Orchestra pit at the Royal Opera House in 2012.
A key finding in the first instance decision was that it should have been compulsory for all orchestra musicians to wear personal hearing protection (PHP) at all times, whilst rehearsing and performing music that may result in the Exposure Action Value of 85 decibels being exceeded, regardless of the practicability of doing so and the effect on the quality of the sound they were able to produce. Understandably, the potential ramifications of such a finding, had it been allowed to stand, (not limited to classical music and opera), were a major concern, and as a result, the Association of British Orchestras, UK Theatre Association and the Society of London Theatre were permitted to intervene in the appeal, which was heard over two days last month.
The Court of Appeal, whilst declining to overturn the liability decision in Mr Goldscheider’s favour, upheld it on much narrower grounds than the lower court, and crucially overturned the High Court finding that Regulation 7(3) of the Noise at Work Regulations 2005 required the employer to enforce the blanket wearing of PHP for all players at all times during the course of a rehearsal or performance if any member was likely to be exposed over the Upper Action Value of 85dB(A)Lep,d, which would have applied to most of the Opera House’s repertoire.
The court accepted the appellants case that it was not reasonably practicable for the players to perform if they were required to wear PHP at all times, and set aside the findings of breach under regulation 7(3) and the consequential finding of breach under regulation 10(1) that the claimant wasn’t provided with suitable and sufficient information, instruction, and training.
Despite the collective sigh of relief in the music and entertainment sector at these findings, there remain issues that we believe were not satisfactorily concluded by the Court of Appeal. It seems to have abandoned the key findings of the first instance Judge on breach of duty, rather basing its decision on the supposed potential reduction in sound levels achieved by reconfiguration of the orchestra after the event evidencing the fact that not all that was reasonably practicable to have been done at the time of the original incident. This reliance we believe was misconceived and ignored clear evidence that it was not the reconfiguration itself that caused the demonstrable reduction in sound levels, but the differing nature of the two rehearsals, which the expert witness engineer had accepted and the judge had not refuted at first instance.
The Court of Appeal judgment also fails to deal with the engineering evidence that Mr Goldscheider’s noise exposure, attenuated by PHP, was below 80dB(A)Lep,d, which his counsel accepted in argument was safe and that no injury at this level was foreseeable.
It is also disappointing to note that the judgment on diagnosis does not deal with the main issues raised by the appellant, that the requirements for an ‘acoustic startle’ response were not met (loud unexpected randomly occurring, high pitched and startling stimuli, causing immediate symptoms) and that the appellant’s medical expert evidence was misinterpreted by the trial judge. There is also the unresolved question of under what poorly defined circumstances it is appropriate to shift the burden of disproving the causation of an injury onto the defendant. The court declined to disturb the trial judge’s findings on medical causation as she had the benefit of hearing all the evidence, although it does note that the diagnosis of acoustic shock in this case was quite ‘a close debate’ in a relatively new and developing area.
What this means for you
For the live music and entertainment sector, this judgment will be welcome and provide much relief that it was accepted it is not reasonably practicable to compel a blanket enforcement of hearing protection for its musicians, however there are some key points to take on board, mainly that demonstrating that everything reasonably practicable had been done to reduce the levels below the action value (before attenuating with PHP) is a high hurdle to clear.
‘Acoustic shock’ itself is far from a settled and widely accepted medical phenomenon, and as the Court of Appeal remarks, whilst there is some evidence of its existence, it is a relatively new concept which is still poorly understood.
The decision has left many questions unresolved, as employers are still left having to consider how to protect employees from immediate injury at low peak levels said to be capable of causing ‘acoustic shock’; what mechanism for injury there is where peak levels are below the statutory action level; and how a diagnosis can be reached where its requirement of a sudden high pitched random sound are not.
We are giving careful consideration to whether these unresolved issues are realistically likely to be resolved on further appeal.
Nigel Lock, Occupational Disease partner at BLM acting for Royal Opera House said:
“No doubt the live music and entertainment industry will be heaving a sigh of relief that the blanket enforcement of protection for musicians at all times has been overturned. However the judgment fails to address a number of key issues around the causation of injury at an attenuated noise level at which it is not foreseen that harm can be caused and significant misconceptions in the evidence remain which is disappointing. It leaves many unanswered questions and uncertainties from a judgment we had hoped would bring more clarity to this contentious area.”