Underlining the employer’s duty in the performing and creative arts: Goldscheider v The Royal Opera House Covent Garden Foundation [2019] EWCA Civ 711

The Court of Appeal has unanimously dismissed the defendant’s appeal in Goldscheider v The Royal Opera Covent Garden Foundation [2019] EWCA Civ 711.

As a former academic musicologist and professional musician, Rachel Segal of our Personal Injury team provides an article (see below) for legal practitioners who are interested in the newly emerging area of acoustic shock in professional musicians.

The outcome in Goldscheider v The Royal Opera Covent Garden Foundation is significant in underlining the scope of the duty of care owed by music industry employers to their employees and has potentially far-reaching consequences for employers’ liability litigation in the performing arts industry as a whole. The Court of Appeal made it abundantly clear that the artistic demands of particular high art forms do not take precedence over employers’ obligations in respect of health and safety.

The Court of Appeal has unanimously dismissed the defendant’s appeal in Goldscheider v The Royal Opera Covent Garden Foundation [2019] EWCA Civ 711.

As a former academic musicologist and professional musician, Rachel Segal of our Personal Injury team provides an article (see below) for legal practitioners who are interested in the newly emerging area of acoustic shock in professional musicians.

The outcome in Goldscheider v The Royal Opera Covent Garden Foundation is significant in underlining the scope of the duty of care owed by music industry employers to their employees and has potentially far-reaching consequences for employers’ liability litigation in the performing arts industry as a whole. The Court of Appeal made it abundantly clear that the artistic demands of particular high art forms do not take precedence over employers’ obligations in respect of health and safety.

Sir Brian Leveson (President of the QB Division) and McCombe and Bean LJJ upheld the first instance judgment, albeit on slightly narrower grounds than at first instance. They agreed that there had been a failure on the part of the Royal Opera House (ROH) to comply with the Control of Noise at Work Regulations 2005, particularly Regulations 6(1) and (2), which are concerned with eliminating or minimising employees’ risks of exposure to noise at work as far as reasonably practicable. They confirmed that Nicola Davies J was entitled to prefer the evidence of the claimant’s expert regarding the diagnosis of the damage sustained (acoustic shock).  They agreed also with the lower court’s approach to causation. However, they did not agree that the (ROH) had breached Regulation 7 (Hearing Protection) or Regulation 10 (Information, Instruction and Training).

This was a pre-ERRA claim but is still germane to cases in which breaches of the Regulations are pleaded as evidence of negligence.

The factual background of the case is one familiar to professional musicians and their employers: the claimant was a professional violist in the (ROH) Orchestra. The physical arrangement of orchestral sections can vary; the demands of particular musical genres and repertoires (in this case Die Walküre (“The Valkyrie”) – the second part of Richard Wagner’s Der Ring das Nibelungen, or “the Ring Cycle”) often results in a reconfiguration of instrumental sections.  This is especially the case where the musicians are seated in an orchestral pit which is necessarily limited in space but also applies to concert hall and studio environments.  It is common for the viola and sometimes the cello sections to be seated a short distance in front of the brass section where they could be exposed to very high sound levels.

At the material time the ROH Orchestra was rehearsing Die Walküre which required a powerful 18-piece brass section; the claimant and his desk partner were placed very close indeed to the brass players and much closer than had previously been the case when this repertoire had been performed at Covent Garden.

It is well known that brass instruments, individually and en masse, can create very loud, directional noise and that exposure to this type of noise can give rise to a substantial risk of injury.  The claimant was used to some noise, having been an orchestral player for several years. Further, it is well known among professional orchestral musicians that exposure to loud musical sound routinely leads to at least some hearing loss in respect of particular frequencies/pitches according to the nature and extent of exposure over a period of time.  It has conventionally (perhaps erroneously?) been regarded as somewhat of an occupational hazard.

However, during the morning rehearsal on the day in question, despite wearing his 9dB earplugs, the claimant was directly exposed to such an overwhelming wall of different types of sound and in a confined space that he experienced unprecedented and intense pain in his right ear and hearing loss, and he felt very unwell, confused, dizzy and nauseated. In short, despite substantial debate at first instance between the medical experts as to the nature of the injury sustained, he was found to have suffered acoustic shock.  He complained about the noise at the time, and for the afternoon rehearsal dosemeters (noise measurement devices) were put in place to assist in gauging noise exposure levels.

The ROH used a range of devices and interventions to tackle noise exposure such as acoustic screens, providing each player with two sets of bespoke, individually-fitted ear plugs designed to provide protection from exposure of up to 9 decibels and up to 28 decibels respectively and, when prompted, took noise readings from dosemeters placed in the physical positions of individual players.  It was as a result of the dosemeter data that the court was able to consider the claimant’s noise exposure levels at the material time.

Noise exposure levels in any environment are affected by a number of factors, including sound pressure, sound frequencies, number of exposures and duration of exposure.  It is worth remembering that decibels are on a logarithmic not a linear scale, so an increase of just 3 decibels results in a doubling of the sound energy.  This means that a noise level of 91dB(A) has a sound pressure which is four times that of a noise level of 85dB(A).

The lower EAV set out in the Regulations is a daily or weekly personal noise exposure of 80dB(A). During the 3¼-hour afternoon rehearsal on the day in question (when the configuration of the orchestra was the same as it had been in the morning), the average noise level to which the claimant was exposed was 91.8dB(A).  This does not take into account the cumulative effect of the exposure during the morning rehearsal of the same day. The lower EAV was reached within less than half an hour.

The upper EAV set out in the Regulations is a daily or weekly personal noise exposure of 85dB(A).  The average exposure during the measurement period (slightly shorter than the rehearsal period) was 92.2dB(A).  It was foreseeable that the noise exposure was of a level likely to cause injury.  But was it reasonably practicable to have reduced the said exposure?

Interestingly, in this regard it was also the dosemeter data that proved most problematic for the ROH. The first set of readings were taken on the afternoon in question from the positions of both the claimant and his desk partner (the viola player sitting next to him) by which time they had both complained about the noise levels and had suffered various symptoms later attributed to excessive noise exposure.  The second set of readings were taken during a rehearsal of the same repertoire ten days later after which time the brass section had been reconfigured and the claimant’s viola desk had been repositioned to approximately one metre’s distance away from the brass section.  The second set of readings showed a marked reduction in noise exposure levels and the improvement had been noticeable at the time.  These simple (and easily implemented) changes had effected a dramatic change in noise exposure levels without having a detrimental effect on the musical output overall but they came too late to benefit the claimant.  They also demonstrated that the exposure levels recorded on the day in question had simply not been reduced to the lowest level reasonably practicable.

The fact that the claimant’s desk partner (who was wearing the higher protection ear plugs) also suffered nausea and sensitivity to noise that lasted several weeks was considered significant by the claimant’s medical expert, the first instance judge and the Court of Appeal.

In respect of causation, the Court of Appeal applied the principle in Ghaith v Indesit Company UK Ltd [2012] EWCA Civ 642 which held that where an employee has shown that he has been exposed to noise likely to cause injury (the upper EAV in the Regulations constituted such exposure) and that a noise-induced injury has been sustained, unless the employer could show that the breach was not causative of the injury, causation is established.

The impact of his injury on the claimant’s daily life has been enormous.  Mr Goldscheider tried to return to work at various points but upon each occasion his symptoms worsened, causing him right ear pain and dizziness sufficient to make walking difficult.  The acute sensitivity to noise he now suffers means that he is unable to practise in isolation as the sound of his own playing is too much for him to bear.  Even everyday sounds exacerbate his symptoms.  He experienced significant hearing loss in his right ear (which had not been present during previous audiometry) and a change in his hearing, he has had to move his household to a quieter area, and he avoids noise as far as possible.

As Davies J acknowledged at first instance, the orchestral sound that constituted the source of the noise was not a by-product of the defendant’s undertaking but was part of the undertaking’s central purpose.  However, as Sir Brian Leveson suggested, this case underlines “the obligation placed on orchestras to comply with the requirements of the legislation [….] It emphasises that the 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 [….]”

It appears that this is the first time a professional musician has successfully brought a claim for damages for acoustic shock; it is unlikely to be the last.

The ROH is seeking permission to appeal to the Supreme Court.

Rachel is a personal injury barrister representing both claimants and defendants in trials, applications and other interim hearings in a broad range of RTA (including credit hire), Highways Act, employers’ liability, occupier’s liability and public liability matters. Rachel also continues to be in demand for her particular specialism in relief from sanctions applications following her work in this area. As a former academic musicologist and professional musician she is particularly interested in the newly emerging area of acoustic shock in professional musicians. Read more here.