PROFESSIONAL MUSICIAN SUCCEEDS IN CLAIM FOR ACOUSTIC SHOCK

29th March 2018

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A viola player who suffered hearing damage at a rehearsal of Wagner's Die Walkure in 2012 has been awarded judgment in Goldscheider v Royal Opera House Convent Garden Foundation [2018] EWHC 687 (QB).

The case is the first to consider the application of the Control of Noise at Work Regulations 2005 to the entertainment sector and is the first to recognise that acoustic shock is a compensatable condition. Symptoms of acoustic shock include tinnitus, hyperacusis (intolerance to every day sounds), dizziness, headaches, sleep disturbance and poor concentration.

Mr Goldscheider was seated directly in front of 18-20 brass section players during a rehearsal on 1 September 2012. He alleged that during the afternoon rehearsal he was exposed to noise levels which resulted in acoustic shock and, as a result, he is unable to work as a professional musician.

In its defence to the claim, the ROH argued that:

  • the noise produced by a professional orchestra is not a by-product of its activities, but the product;

  • the safety standards to be imposed upon it must take into account the aesthetic and technical demands to which the ROH and its players are subject;

  • it had taken all reasonably practicable steps to reduce the risk of injury and should not be required to take further steps as these would unreasonably compromise the output of the orchestra;

  • Mr Goldscheider contributed to his injury by failing to wear hearing protection throughout the whole rehearsal;

  • acoustic shock is not a medically diagnosable condition.

The judge found that Mr Goldscheider’s condition had been caused by the ROH’s breach of statutory duty under the Control of Noise at Work Regulations 2005. In particular, she concluded that:

  • RHO’s risk assessment was inadequate;

  • it had failed to undertake any monitoring of noise levels in the cramped orchestra pit with a new orchestral configuration which had been chosen for artistic reasons;

  • it should have instructed Mr Goldscheider of the need to wear earplugs continuously throughout the rehearsal and enforced the mandatory wearing of hearing protection in the orchestra pit at all times.

The ROH argument that a balance had to be struck between preserving the artistic integrity of the music while doing everything possible to reduce the risk of damage to musicians' hearing (which was an inevitable feature of playing long-term in an orchestra) was rejected by the judge who said the 2005 ‘Regulations recognise no distinction as between a factory and an opera house’.

Damages are to be assessed – his claim for loss of earnings alone is £750,000. It has been reported that an appeal is being considered.

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