It is unusual for hearing loss claims to attract the attention of the mainstream television and print media, however, this was not the case in a recent claim, following the Court of Appeal decision in Goldscheider v Royal Opera House.
This claim involved a viola player in the orchestra of the Royal Opera House who claimed to have suffered acoustic shock due to noise levels during a rehearsal of Wagner’s Ring Circle in 2012. The claimant had been seated immediately in front of the principal trumpet. He had been provided with custom 9dB earplugs and 28dB earplugs were available in the orchestra pit, however, players were told that these could be worn at their discretion as they interfered with hearing other players.
The claimant and the adjacent viola player complained about the noise at lunchtime. After the afternoon rehearsal, the claimant felt ear pain and dizziness. He was subsequently unable to return to work, suffering from acoustic shock.
At first instance, the court held that the defendant was in breach of the Control of Noise at Work Act 2005 for various failures including failing to carry out an adequate risk assessment; failing to do everything reasonably practicable to eliminate the risk of noise exposure; failing to designate its orchestra pit as a mandatory hearing protection zone and failing to train orchestra members about the risks.
The Court of Appeal held that the judge was right to find that the orchestra pit should have been designated as a hearing protection zone with appropriate signage. It was accepted, however, that whilst it was “physically practicable” it was not reasonably practicable for players in the orchestra pit to be required to wear hearing protection at all times. The Court of Appeal therefore reversed the judge’s finding in relation to the wearing of hearing protection.
The Court of Appeal, however, upheld the first instance ruling in relation to the defendant’s failure to reduce the noise levels to the lowest level reasonable practicable in accordance with regulation 6(1) and where noise levels are at or above the upper EAV, to establish or implement a programme of organisational or technical measures to reduce to the lowest level as per Regulation 6(2). The Court found it particularly significant that following the claimant’s complaints the orchestra layout was rearranged and a gap of 1 metre was created between the brass and violas. In addition some of the brass were relocated to another part of the pit. This did not affect the artistic standards of the performance and made it difficult for the defendants to prove that they had taken all reasonably practicable steps beforehand.
The Court did not interfere with the judge’s finding on causation that the defendant had not shown that the breach had not caused the injury. As to diagnosis, whilst it was “a close debate”, the Court of Appeal found that the judge had been correct to recognise that whilst the concept acoustic shook was relatively new there was material evidence, albeit developing, that such a condition existed. Accordingly, they did not interfere with the judge’s finding on the medical diagnosis.
There is significant interest from other parties – the Association of British Orchestras; the Society of London Theatre and the UK Theatre Association were all Interveners in the appeal case. It remains to be seen whether an appeal will be pursued to the Supreme Court if permitted.