Goldscheider v Royal Opera House [2019] EWCA Civ 711

**Goldscheider v Royal Opera House Covent Garden Foundation [2019] EWCA Civ 711** concerned an appeal by the Royal Opera House against a finding that it had breached the Control of Noise at Work Regulations 2005, thereby causing injury to an orchestral viola player. The Court of Appeal (Sir Brian Leveson P, McCombe and Bean LJJ) dismissed the appeal, albeit on narrower grounds than the trial judge.

Mr Christopher Goldscheider had been employed by the Royal Opera House as a viola player on a full-time, first-call non-exclusive contract. In September 2012 rehearsals began for a production of Wagner’s Ring cycle. Mr Goldscheider sat in the third desk of violas for Die Walküre rehearsals on 31 August and 1 September 2012, positioned immediately in front of the brass section comprising eighteen instruments, including four trumpets. The principal trumpet bell was directed very close to his right ear. On the morning of Saturday 1 September Mr Goldscheider attempted to use his custom-moulded nine decibel earplugs but found them ineffective; he switched to twenty-eight decibel foam plugs but even those did not prevent what he described as an excruciatingly loud and painful sensation, particularly in his right ear. He complained at lunchtime, as did colleagues. Noise measurements taken during the afternoon rehearsal showed that Mr Goldscheider had been exposed to an average of 91.8 dB(A)Leq over the session, reaching the upper exposure action value (85 dB(A) daily personal noise exposure) within 1.6 hours. The exposure limit value would have been reached within 2.64 hours if no hearing protection had been worn. Following the complaints, the pit was reconfigured by creating a one-metre gap between the brass and violas and relocating some brass instruments. Measurements taken at a rehearsal on 11 September showed the exposure level for Mr Goldscheider’s desk partner had fallen to 83 dB(A)Leq.

Mr Goldscheider experienced immediate symptoms including severe pain in his right ear, nausea, dizziness and hyperacusis. Audiometry showed new high-frequency hearing loss in the right ear. He attempted to return to work on several occasions but found it impossible; his symptoms worsened whenever he tried to play. His employment ended in July 2014. He brought a claim for damages, and following a trial of preliminary issues Mrs Justice Nicola Davies (as she then was) found the defendant in breach of duty under regulations 5, 6, 7 and 10 of the 2005 Regulations and that the breaches had caused acoustic shock injury ending his professional career. The Association of British Orchestras, the Society of London Theatre and UK Theatre Association intervened in support of the defendant’s appeal, expressing concern about the implications for the music industry.

The Court of Appeal began with regulation 6. Regulation 6(1) required the employer to ensure that risk from noise exposure was eliminated at source or, where not reasonably practicable, reduced to as low a level as reasonably practicable. Regulation 6(2) imposed a specific duty where exposure was likely to be at or above the upper exposure action value of 85 dB(A): the employer had to reduce exposure to as low a level as reasonably practicable by a programme of organisational and technical measures excluding the provision of personal hearing protectors. The court emphasised that each three decibel increase doubled the sound pressure, so 91 dB(A) created quadruple the sound pressure of 85 dB(A). The burden lay on the Royal Opera House, once the workplace was shown to be unsafe, to prove it had taken all reasonably practicable steps. The court rejected the defendant’s contention that it had discharged that burden. The comparison between the noise measurements on 1 September and those on 11 September, after reconfiguration, was highly significant. The defendant’s explanation that the later readings were lower because quieter sections were being rehearsed in a stop-start fashion was not supported by detailed evidence and ignored the effect of the physical reconfiguration. The court noted that if the defendant wished to show it was not reasonably practicable to reduce daily exposure to 85 dB(A) it might have adduced evidence showing that levels of 91-92 dB(A) were regularly reached in Wagner performances whatever the pit configuration, or that keeping within the upper exposure action value would prevent Wagner from being performed at all or only in a way that unacceptably compromised artistic standards, or that the rehearsal schedule could not have been altered. No such evidence had been called. The fact that the pit was successfully reconfigured after 1 September without any evidence that this reduced artistic standards made it very difficult for the defendant to prove all reasonably practicable steps had already been taken. Section 1 of the Compensation Act 2006, which permits a court to have regard to whether imposing a requirement to take particular steps might prevent a desirable activity being undertaken, did not assist because the evidence had not demonstrated that nothing more could have been done without abandoning the Wagner repertoire entirely. The court also rejected the argument on foreseeability. The defendant accepted that exposure of 92 dB(A) over the long term posed a well-recognised risk of gradually causing noise-induced hearing loss. The court held that once the defendant had failed to reduce exposure to as low a level as reasonably practicable and had failed to take all reasonably practicable steps to reduce it to 85 dB(A), the fact that the foreseeable risk was of long-term rather than traumatic injury was irrelevant: the duty under the Regulations was to protect against risk of injury to hearing caused by excessive noise at work.

The court upheld the judge’s finding of breach of regulations 6(1) and 6(2) but set aside her conclusions on regulation 7. Regulation 7(3) required that if an employee was likely to be exposed to noise at or above an upper exposure action value the employer had to designate the area a Hearing Protection Zone, demarcate it and identify it with a specified sign, and ensure so far as reasonably practicable that no employee entered without wearing personal hearing protectors. The judge had found breaches in that the pit had not been so designated and signage had not been displayed, and had held that it was not sufficient to leave the issue of wearing protection to the musicians’ own judgment. The Court of Appeal agreed that the pit should have been designated a Hearing Protection Zone and that the required sign should have been displayed, since sub-paragraphs (a) and (b) of regulation 7(3) were categorical. However, the final part of regulation 7(3), imposing a duty to ensure wearing of protectors, was qualified by the words “so far as is reasonably practicable”. The court accepted that there had been a consensus at trial that it was not reasonably practicable for orchestra members to wear personal hearing protectors throughout performances or rehearsals because to do so during quieter passages would mean they could not hear sufficiently clearly. Mr Goldscheider’s own evidence was that the nine decibel plugs did not offer sufficient protection when music was very loud and the twenty-eight decibel plugs made it difficult to hear other instruments, the conductor and his own instrument. Brass players found wearing earplugs unbearable because of the phenomenon of occlusion caused by blowing into an instrument while wearing them. The court concluded that “reasonably practicable” was not the same as “physically practicable” and that it was not reasonably practicable for players in the orchestra pit to perform if required to wear protectors at all times. It set aside the judge’s finding of breach of regulation 7(3) and the consequential finding of breach of regulation 10(1).

On regulation 5, which required a suitable and sufficient risk assessment, the court agreed with the judge that there had been a breach in that the risk assessment did not include specific consideration of the expected level, type and duration of exposure including peak sound pressure, and there had been no review as the rehearsals progressed. The failure to designate a hearing protection zone was academic in light of the conclusions on regulation 7. The court disagreed that the risk assessment ought to have imposed more stringent requirements for wearing hearing protection.

On causation, the defendant argued that the judge had failed to follow the necessary logical steps and relied on Clough v First Choice Holidays [2006] EWCA Civ 15, contending that the claimant had to show the injury would not have occurred but for the breach. The court distinguished Clough and applied instead Ghaith v Indesit Company UK Ltd [2012] EWCA Civ 642 as explained in West Sussex CC v Fuller [2015] EWCA Civ 189. Those cases established that once a prima facie connection was established between an inherently risky activity and an injury, and where the employer could not show it had taken appropriate steps to reduce the risk to the lowest level reasonably practicable, it was for the employer to disprove causation, not for the employee to prove that if all possible precautions had been taken he would not have suffered injury. Here the respondent had established the occurrence of the risk inherent in excessive exposure to noise. The rehearsal was not merely the occasion for the injury but its cause. The defendant had failed to show that the breach was not causative. The judge had been entitled to find that noise levels at the 1 September rehearsal were such as to cause hearing difficulties and symptoms to the two musicians in the last desk of violas immediately in front of the trumpets and banked brass. It was beyond coincidence that both viola players complained of noise levels and resulting hearing problems. The desk partner had reported nausea and sensitivity to noise lasting several weeks even while wearing twenty-five decibel earplugs continuously. The reduction in noise levels at the 11 September rehearsal after reconfiguration supported the causal connection.

As to medical causation, Mr Parker instructed by the claimant diagnosed acoustic shock, whereas Mr Jones instructed by the defendant considered the symptoms explained by Meniere’s syndrome or endolymphatic hydrops and dismissed the existence of acoustic shock. The judge preferred Mr Parker’s evidence. The court noted that neither expert could claim the symptoms matched point for point his favoured diagnosis, but it was precisely the type of dispute a trial judge was best placed to assess having seen and heard the evidence. The appellate court had not been taken in detail through the medical evidence and had no overview as good as the judge’s. The judge had been entitled to reject Meniere’s disease as the more probable explanation: the respondent had high-frequency hearing loss in the right ear, not the low or medium frequency loss identified as a criterion for Meniere’s disease; the most troublesome symptom, hyperacusis, was not identified as a criterion for Meniere’s; and no treating clinician skilled in otology had diagnosed Meniere’s. The judge had accepted that the noise levels on 1 September were within the range identified as causing acoustic shock and that the index exposure was the playing of the principal trumpet in the claimant’s right ear, whether one sound or a cluster of short-duration sounds, which resulted in acoustic shock causing the injury and continuing symptoms. The Court of Appeal held that the judge’s conclusions on the medical outcome were not capable of being sensibly undermined on appeal.

Sir Brian Leveson P added short observations addressing the concerns of the interveners about wider ramifications for music-making in the United Kingdom. He rejected the suggestion of a cataclysmic scenario. For most musical venues space would not be the problem it was at the Royal Opera House because of the overhang and limited room in the pit. Even with those limitations a comparatively small repositioning of the orchestra had been put into effect within days with marked reduction in sound pressure. The case did not require the defendant to understand musicians’ professional commitments when not working in the orchestra, prevent performance of new works or require scheduling inconsistent with artistic requirements. The problems identified were foreseeable and reasonably preventable. The judgment underlined the obligation on orchestras to comply with the 2005 Regulations, having had two years to prepare, and emphasised that the risk of injury through noise was not removed simply because the noise in the form of music was the deliberate and desired objective rather than an unwanted by-product, as recognised in the Health and Safety Executive’s Sound Advice document.

In short, the Court of Appeal dismissed the appeal, holding that the Royal Opera House had breached regulations 6(1) and 6(2) of the Control of Noise at Work Regulations 2005 by failing to reduce noise exposure to as low a level as reasonably practicable and that those breaches caused Mr Goldscheider’s acoustic shock injury, but set aside findings of breach of regulation 7(3) concerning the mandatory wearing of hearing protection throughout rehearsals.

Baker v Quantum Clothing Group Ltd [2011] 1 WLR 1003
Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107
Tomlinson v Congleton BC [2004] 1 AC 46
Hughes v Lord Advocate [1963] AC 837
Page v Smith [1996] 1 AC 155
Clough v First Choice Holidays [2006] EWCA Civ 15
Ghaith v Indesit Company UK Ltd [2012] EWCA Civ 642
West Sussex CC v Fuller [2015] EWCA Civ 189