Orchestral musician wins landmark case over hearing damage

Violist, Chris Goldscheider, has succeeded in a landmark UK High Court case against the Royal Opera House Convent Garden Foundation that runs the Royal Opera House in London, UK.

This case marks the first time ‘acoustic shock’ has been recognised as a compensable condition in the UK and the first time the High Court has explored the music industry’s legal obligations towards the hearing of musicians.

Facts

On Saturday, 1 September 2012 the plaintiff was a violist in the orchestra pit during a rehearsal of Richard Wagner’s opera Die Walküre (The Valkyrie) at the Royal Opera House at Covent Garden.

During the rehearsal, the plaintiff was sitting directly in front of the 18-piece brass section when the noise level reached around 137 decibels causing irreversible damage to the plaintiff’s hearing.

[Note a level of 150 decibels is equivalent to a jet taking off and can cause ear drum rupture and the average human pain threshold is reached at 110 decibels. Source: Noise Sources and Their Effects]

The plaintiff claimed damages for acoustic shock with symptoms including tinnitus, hypersensitivity to noise, headaches and dizziness. His Counsel, Theo Huckle QC, said the effects of the injury had “seriously diminished his life in all significant respects”.

The plaintiff spent 18 months recovering from his injury and eventually left the Royal Opera House in July 2014 as a result of the injuries.

The defendant claimed that the plaintiff had coincidentally developed Ménière’s disease, a natural hearing condition that can also cause dizziness, at exactly the same time as the loud burst of noise that the plaintiff claimed caused his acoustic shock.

The defendant’s Counsel, David Platt QC, stated that the plaintiff had been provided with ear protection and that the opera house had gone “as far and, if anything, further than the reasonable employer” to reduce noise levels.

The plaintiff, like many musicians, did not wear earplugs through the entire rehearsal but rather, put them in when he considered noise levels were high. The defendant argued it could not reasonably require musicians to wear ear protection at all times as a factory would because “the noise produced by the professional orchestra is not a by-product of its activities, it is the product.”

Ruling

The judgment was handed down on 28 March 2018 by the Hon. Mrs Justice Nicola Davies DBE.

Justice Davies found in favour of the plaintiff on the issues of breach of duty and causation of injury. She considered that the defendant’s argument in relation to the plaintiff coincidentally developing Ménière’s disease was “stretching the concept of coincidence too far”.

Damages are yet to be assessed however the plaintiff’s claim includes significant damages for economic loss after having been forced to give up performing.

The judge held that the defendant was in breach of a number of provision of The Control of Noise at Work Regulations 2005. She found a clear factual and causal link between the identified breaches of the Regulations and the high level of noise which ensued at the rehearsal causing the plaintiff’s injury.

The breaches included an inadequate risk assessment and failure to undertake monitoring of noise levels in the cramped orchestra pit.

“The index exposure was the playing of the principal trumpet in the right ear of the claimant… It was that exposure which resulted in the claimant sustaining acoustic shock which led to the injury which he sustained and the symptoms which have developed, from which he continues to suffer.”

The defendant argued that a balance had to be struck between preserving the artistic integrity of music while doing everything possible to reduce the risk of damage to musicians’ hearing, that was an inevitable feature of playing long-term in an orchestra.

Justice Davies disagreed, ruling that “the reliance upon artistic value implies that statutory health and safety requirements must cede to the needs and wishes of the artistic output of the Opera company, its managers and conductors. Such a stance is unacceptable. Musicians are entitled to the protection of the law, as is any other worker.”

Justice Davies said there was “a failure by the management of the Royal Opera House to properly appreciate or act upon the mandatory requirements.”

The Royal Opera House was refused permission to appeal against the ruling however they are believed to be considering appealing directly to the Court of Appeal.

Comment

This decision has potential far-reaching implications for the music industry with the prospect of claims from other musicians, the need for orchestras to reassess policies and procedures, along with possibly redesigning orchestra pits which could come at enormous expense.

Help Musicians UK are a leading UK charity for professional musicians. Their 2015 hearing survey cites a growing number of hearing related issues amongst musicians across all genres of music. A Finnish study among classical musicians found that 15% in the study suffered from permanent tinnitus with temporary tinnitus affecting another 41% in group rehearsals.

First and foremost musicians should be cautious and aware of the risks involved with their profession. Seek expert medical advice and invest in hearing protection to minimise those risks.

If you or your organisation are seeking legal advice please do not hesitate to get in touch.

FULL JUDGMENT

Christopher Goldsheider v The Royal Opera House Covent Garden Foundation [2018] EWHC 687 (QB)

LINKS

Help Musicians UK 2015 Survey of Professional Musicians in the UK

Finnish 2011 study ‘Hearing loss among classical-orchestra musicians’

Blog Article on the Judgment by Chris Fry, Lawyer for the Plaintiff

LEGISLATION

The Control of Noise at Work Regulations 2005 No.1643

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