Client Alerts

Keoghs Insight

Author

Acoustic Shock to the System?

Client Alerts24/04/2019

The Court of Appeal has handed down judgment in Goldscheider v Royal Opera House [2019] EWCA Civ 711.

Background

The ROH appealed against a decision that it was liable for breach of statutory duty and for causing injury to a viola player. The claimant, Mr Goldscheider, sat directly in front of the trumpet section of the orchestra for rehearsals. He alleged that he had suffered "Acoustic Shock" as a consequence of his exposure to noise, with symptoms developing following a rehearsal on 1 September 2012.

The trial judge found that:

  • The ROH were in breach of Regulation 6 of the Control of Noise at Work Regulations 2005 as they had not taken all reasonably practicable steps to reduce the risk of noise at rehearsal on the afternoon of 1 September 2012.
  • The ROH were in breach of Regulation 7 of the 2005 Regulations as they had not enforced mandatory wearing of hearing protection by the orchestra.
  • Causation was clear given the evidence of two musicians that they suffered significant hearing issues and symptoms immediately following the exposure to excessive noise.

The ROH appealed the decision.

Appeal Outcome

The Court of Appeal (CoA) disagreed with the trial judge's interpretation of Regulation 7. The CoA noted the requirement for mandatory hearing protection was where "reasonably practicable", which was not the same as "physically practicable", and accepted that it was not reasonably practicable for players in the orchestra to wear hearing protection at all times.

However they otherwise upheld the trial judge's decision.

Analysis

Regulation 6

As with all employers the ROH were under a duty to eliminate or reduce exposure to noise to as low a level as is reasonably practicable and, if there is likely exposure, to implement organisational or technical measures appropriate to the activity.

Ultimately, the damning evidence for the ROH was that noise surveys taken following the claimant's complaint led to a rearrangement of the orchestra's seating positions. This significantly reduced the likely exposure to acceptable levels. The CoA found that "Alterations made by defendants after a workplace accident do not necessarily demonstrate liability, but they do make it very difficult for the defendant to prove that all reasonably practicable steps had already been taken".   

Regulation 7

The reversal of the trial judge's decision is important. Musicians need to be able to hear both themselves and their colleagues. The constant use of hearing protection was simply not practicable. It would also be near impossible to police such enforcement during performance. This reversal should provide some comfort to other entertainment sector employers. It will help preserve artistic integrity and prevent the need to patrol orchestra members to ensure hearing protection is constantly worn.

Causation

Acoustic shock is a relatively new diagnosis. The medical experts had disputed whether it was indeed a condition or whether the claimant had suffered various other conditions such as Meniere's disease. The trial judge had preferred the claimant's medical evidence and concluded that the claimant had suffered acoustic shock.

The CoA found no reason to interfere with the trial judge's decision. The temporal association between the breach and the commencement of symptoms made the diagnosis of acoustic shock far more likely than a coincidental occurrence of Meniere's disease. This was neatly summarised by McCombe LJ and Bean LJ: "it is not the label that matters but the connection of the symptoms with breach of the regulations".

What does this mean?

It is tempting to jump to the conclusion that this decision will have significant consequences for music and entertainment industries. However the narrowing of the decision by the appeal judge and the peculiar facts of this case should be capable of distinction in many claims. Whilst this may not be a particularly significant judgment, the CoA clearly intended to restrict the effect of the decision and avoid widespread concern in the entertainment sector:

"[The Appellants] speak of curtailing not only the ROH but 'all music making in the UK'… I simply do not accept that cataclysmic scenario represents a proper understanding of the consequences of this decision". [Sir Brian Leveson P]

That said, the following implications for employers and their insurers should be noted:

  • There is a clear obligation on orchestras and other similar establishments to comply with the 2005 Regulations. Employers need to ensure appropriate risk assessments are undertaken and that reasonable steps are taken to ensure employees are protected, as with any business.
  • The ROH is an unusual venue as the orchestra is seated in a pit partially overhung by the stage. There was little room for spreading out players without transferring risk from one part of the orchestra to another. Other venues with more space should be at less risk of falling foul of Regulation 6.
  • Enforcement of the use of hearing protection is required only where it is reasonably practicable. Players should be able to remove their hearing protection when necessary, for example to await cues or to properly play their instruments. Employers should ensure musicians are appropriately trained in the use of hearing protection and the risks of noise
  • Perhaps the biggest potential consequence is a more practical one. This case has highlighted the entertainment sector as an untapped source of noise injury claims. Whilst acoustic shock cases will likely be few and far between, the obligations apply equally to long term injury risks like noise induced hearing loss. It's entirely possible that this decision will lead to claimant firms looking to mine these potential claimants. The 2005 Regulations applied to the entertainment sector from 2008 and sufficient time has now passed for exposed employees to have accrued long tail noise related injuries that can be attributed to an employer breach.