On 17 April 2019 the Court of Appeal delivered its Judgment in the controversial case of Christopher Goldscheider v Royal Opera House Covent Garden. This was an appeal brought by the Royal Opera House against the decision in favour of Christopher Goldscheider before the High Court by way of the Judgment of 28 March 2018 finding that the Opera House was in breach of duty and that those breaches had caused the Claimants injury.
The case concerned the implementation of the control of Noise at Work Regulations 2005 and their Application to the performance of live music.
Those Regulations were enacted in the context of preventing noise induced hearing loss in those engaged in paid employment in a noisy working environment.
Within the much debated judgment of The Honourable Mrs Justice Nicola Davies, it was held that an opera house should be treated no differently to a factory and that the Royal Opera House had simply not done enough to protect Christopher Goldscheider from the effects of noise, despite quite wide ranging, and expensive, efforts to comply with the regulations. Christopher Goldscheider in fact did not allege that he had suffered from noise induced hearing loss, a condition quite prevalent among those engaged in the performance of orchestral music. Christopher Goldscheider suffered a controversial, and still not fully understood, medical condition called acoustic shock. This caused Christopher Goldscheider to suffer from hypersensitive hearing and tinnitus, an intrusive ringing in the ears.
The cause of that condition was also not without controversy in that the sound levels said to be responsible for triggering the reaction were not, in isolation, levels that would be considered excessively noisy. It was feared that the ramifications of the judgment would be far reaching, particularly within the context of the performance of live music. Indeed, one particular concern held by the Opera House, and the performance industry generally, was that the effect of the judgment would bring about the compulsory wearing of hearing protection by musicians at all times during the performance of most orchestral, and theatrical, productions.
Those representing the wider musical performance sector were able to make submissions by way of an intervention during the Court of Appeals Hearing in March of this year and endeavoured to impress upon the Court the said wider ramifications of the decision. To their relief, the Court of Appeal has indicated that the judgment should not be interpreted as meaning that professional musicians should wear personal protective equipment at all times but only, with the benefit of specific guidance and education, at those times where risk of injury exists.
Unfortunately, the Judgment perhaps raises more questions than are answered. The fact is that Christopher Goldscheider had available to him two different types of hearing protection during the rehearsal of the performance in question and was not wearing hearing protection at the point that he became unwell and suffered the injury to his hearing. In addition, the Royal Opera House had a healthy budget, and access to market leading advice, that allowed them to take steps, before and after the event, to try and comply with the regulations. But what chance has a smaller organisation where one, as is more common in the wider sector, but has a very limited budget? How many venues can remove rows of seating to make the orchestra’s performance area larger or purchase noise screens and custom moulded ear pieces for the performing artist?
Within this context the ramifications for the public sector are not difficult to see. When a well-meaning local authority or educational establishment puts on the performance of a concert including music, and/or fireworks, or any other production which involves the use of sound as a means of entertainment it must give very careful consideration to the safety of those both performing the activity and those engaged in facilitating it such as stewards, caterers, stage hands, bar staff etc. There are many performance venues in public hands and many public sector and academic organisations that take great pride in putting on performances for the benefit of the wider public. Indeed, it is interesting that the Court of Appeal dismissed the argument that the statutory defence of carrying out a “desirable activity” could not be relied upon by the Opera House in relation to the claim brought by Christopher Goldscheider.
Certainly the wearing of hearing protection is less invasive for those not directly involved in performance. It is likely that most public sector organisations would have hearing protection regimes in place during loud performances of any description for their staff and contract staff engaged in facilitating production. But if we rewind, however, to the issues raised above, we are not dealing here with the long term exposure to loud noise causing hearing loss but a momentary peak of sound to the unprotected ear. Where then does that leave the employer facing the claim from the member of staff who states ‘I only removed my headphones to hear what the man was saying when asking were the toilets were’.
As ever, the starting point in addressing any developing risk facing our local authority and similar clients, is to access the best expert advice, both legal and scientific in protecting themselves from breach of the legislation in the first place and in defending the claims that must surely follow this decision.
If you would like to know more about this matter, please speak to your contacts at Plexus Law:
Dominic Collingwood, Associate
T: 0113 468 1752 | M: 07785 617 972 | E: firstname.lastname@example.org
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