CASE UPDATE: APPEAL DISMISSED - PROFESSIONAL MUSICIAN SUCCEEDS IN CLAIM FOR ACOUSTIC SHOCK

17th June 2019

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In March 2018 we reported on the judgment in Goldscheider v Royal Opera House Convent Garden Foundation [2018] EWHC 687 (QB) which involved a viola player who had succeeded in a claim for damages against the Royal Opera House, after suffering hearing damage at a rehearsal of Wagner's Die Walkure in 2012 – please see our original article for further details -https://www.geldards.com/professional-musician-succeeds-in-claim-for-acoustic-shock.aspx

In November 2018 we further reported that the ROH had been granted permission to appeal the judgement to the Court of Appeal. This would be the first time the Court of Appeal would consider the application of the Control of Noise at Work Regulations 2005 to the entertainment sector - https://www.geldards.com/musician-succeeds-in-claim-for-acoustic-shock.aspx

On 17 April 2019, the Court of Appeal dismissed the Defendant’s appeal and upheld the High Court ruling. The Court of Appeal determined that the ROH breached Regulation 6 of the Control of Noise at Work Regulations 2005 by failing to go ‘as far as reasonably practicable’ to protect the hearing of viola player, Chris Goldscheider. In fact, the Court of Appeal determined that the ROH had fallen well short of establishing such a defence and, to do so, it would have to satisfy the Court that nothing more could have been done to reduce noise levels.

The Court of Appeal further held that the ROH had also breached Regulation 5 of the 2005 Regulations as the risk assessment which had been undertaken before the rehearsals commenced was inadequate. The risk assessment did not consider the type and duration of exposure and was not reviewed once the rehearsals commenced. This suggests that a risk assessment should be able to respond to a changing situation. Mr Goldscheider’s solicitor commented ‘the Court has strengthened the need for good quality and dynamic risk assessments’

The Judge at first instance had rejected the ROH’s argument that acoustic shock is not a medically diagnosable condition and the Court of Appeal affirmed this decision stating ‘the Judge was entitled to reach the conclusions she did as to the medical outcome of this sound exposure experienced by the Respondent and her reasons for doing so are not capable of being sensibly undermined on this appeal’. We have previously noted that this poses a real concern for employers across many industries as acoustic shock can develop as a result of instantaneous exposure to levels of noise below the levels currently specified by the 2005 Regulations.

However, the Court of Appeal did not uphold the High Court’s view that the ROH had breached Regulation 7(3) of the 2005 Regulations by failing to insist that its musicians always wore hearing protection when noise levels exceeded 85dB. The Court of Appeal accepted that it was not reasonably practicable for musicians to do so, as during quiet passages of the music the musicians would be unable to hear the music sufficiently clearly.

The decision has far reaching ramifications not only for the entertainment sector but for any environment in which live music is performed, including schools or community groups. Employers and event organisers will need to continue to comply with the 2005 Regulations and should refer to the HSE’s ‘Sound Advice’ pages- http://www.hse.gov.uk/noise/musicsound.htm for useful advice.

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