Permission to Appeal granted in case set to have major implications for performance of live music

22 Oct 2018

Goldscheider, C v Royal Opera House

BLM, representing the Royal Opera House, has been granted permission to take the case of Goldscheider v Royal Opera House to the Court of Appeal.

Following an eight day High Court trial in March 2018, the court rejected the defendant’s contention that the wearing of ear protection by the claimant during loud sections of a musical performance was sufficient to discharge their duty of care to the claimant. This was despite the fact that the music peaked at a volume well below that specified under the Control of Noise at Work Regulations 2005. The case attracted widespread media coverage at the time.

Nigel Lock, occupational disease partner at BLM, said: “It is so important to anyone taking part in live music - whether a school choir, a concert, a stage show, or a performance at the Royal Opera House - that we have been granted permission to appeal the High Court’s decision. We were always confident the Court of Appeal would agree an appeal had reasonable prospects of success, and are looking forward to making our case, and seeking to put an end to the limbo that live music producers, and musicians and performers have found themselves in since the first instance decision was handed down.

The facts

Mr Goldscheider was a viola player in the Orchestra of the Royal Opera House. He alleged that whilst participating in a rehearsal for a Wagner opera over a weekend in September 2012, he suffered from “acoustic shock” in the right ear despite wearing earplugs with 25dB attenuation provided by his employer. As a result he claimed that he suffered from periodic imbalance and was unable to work as a musician.

The Royal Opera House was aware of the risks posed to its musicians by prolonged exposure to high and sustained levels of performance sound, and took active steps to manage those risks, having worked closely with the Health & Safety Executive to produce “Sound Advice” the guidance for control of noise at work in the music and entertainment sector. It has implemented numerous control measures over the years, including sound absorption and reflection products, but by far the most effective protection was for the musicians to wear individual earplugs whenever the music was loud and they did not need to hear the subtlety and nuance of the sound being produced. Mr Goldscheider was familiar with the opera being rehearsed and had marked his score to show when there were loud sections so that he ensured he was wearing his hearing protection at the appropriate time.

The first instance decision

Mrs Justice Davies found it should have been compulsory for all of the orchestra to wear protection all of the time during rehearsals and performances. This was despite it being unanimously accepted by the witnesses, including the claimant, that it was not practical to wear hearing protection all of the time because it made it impossible to hear the other musicians and blend with their music. This would apply with particular force to soloists. The Judge further held that the orchestra pit had to be a compulsory and permanent “Hearing Protection Zone”, with all the statutory restrictions which this imposed.

In this regard she stated that there was “no distinction” between an opera house and a factory.

The court accepted that such exposure to music was capable of causing so-called “acoustic shock” even though the medical evidence did not support this label and there is a complete absence of previous precedent. It was accepted that the levels of sound to which the orchestra were exposed were too low to cause conventional noise damage.

Awaiting the appeal

As it stands, this judgment will have significant consequences not only for the live music sector in this country and its ability to employ musicians and produce music true to the original score, but also schools, local authorities, and even community groups. In effect it brutally hammers the square peg of the 2005 regulations into the round hole of performance sound production, without any allowance being made for artistic standards, reasonable practicability, and a collaborative approach with the professional musicians. It effectively requires musicians permanently to wear ear plugs during almost all performances and rehearsals, and so this appeal has been keenly awaited by a wide ranging section of the UK entertainment industry, and beyond.

The acceptance that acoustic shock is a real issue for musicians, and may occur at levels of exposure as low as 82dB, (a level half as loud as a noisy restaurant or heavy traffic), poses considerably more questions than it answers. All employers across every sector of the economy who have directed their health and safety efforts to protecting employees from long term exposure to excessive noise and the possibility of noise induced hearing loss, would, should the first instance decision be allowed to stand, have to consider whether instantaneous exposure below the levels in the regulations could result in foreseeable acoustic injury to their employees.

We are expecting the appeal to take place before the summer recess next year and in the meantime, will be working with interested parties and industry stakeholders to examine the grave impact this will have right across the music industry.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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Nigel Lock

Nigel Lock

Partner,
London


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