Court of Appeal Upholds Ruling on Violist’s ‘Acoustic Shock’: Goldscheider v The Royal Opera House Covent Garden Foundation [2019] EWCA Civ 711

‘... lowering noise levels is an enormous challenge for an industry whose purpose is the creation of sound for pleasure. Orchestral sound is not an unwanted secondary by-product of a primary process but the product itself. The difficulty for the ROH as opposed to orchestras which perform on the concert platform is that the latter have considerably more options for spacing sections widely apart and for using risers to allow vertical separation between the sections which assist in lowering noise levels. These are impractical in the pit due to space constraints.’

INRODUCTION

Earlier than expected, on 17 April 2019, Court of Appeal judgment was handed down in the case of Goldscheider v The Royal Opera House Covent Garden Foundation [2019] EWCA Civ 711. Judgment was reserved for just 1 month.

Goldscheider centred around ‘acoustic shock’, a medical condition which was allegedly caused by injurious noise exposure during a rehearsal of Wagner’s Ring Cycle (Der Ring der Nibelungen), at the Royal Opera House (ROH).

The claimant violist, in this case, was the first known musician to seek damages for ‘acoustic shock’ from its employer, with claimants in earlier case authorities having been exposed to electronically generated white noise through earpieces or telephone speakers.

Clinicians at the Royal National Throat, Nose and Ear Hospital advised the claimant not to play professionally again to prevent the onset or exacerbation of symptoms. His employment at the ROH ended in July 2014.

BACKGROUND TO ACOUSTIC SHOCK

‘Acoustic shock’ is caused by an ‘acoustic incident’, i.e. exposure to a high intensity, unexpected, short cluster of noise exposure. Noise of this kind is able to bypass middle ear muscles (the stapedius reflex) and reach the inner ear. In a vestigial, innate response to the threat of potential injury (‘acoustic startle’), the body produces toxic metabolites, which can induce symptoms of deafness, pain, tinnitus and dizziness.

Figure: The Middle Ear

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(Source: Wikimedia Commons)

WAGNER AND THE ROYAL OPERA HOUSE PIT CONFIGURATION

Compared to a modern symphony orchestra, a Wagnerian orchestra is vastly increased in size, ‘with the wind section notably expanded by the inclusion of new instruments such as “Wagner” tubas and rare instruments such as the bass trumpet’.[1]

The Ring Cycle consists of 4 operas (Das Rheingold, Die Walküre, Siegfried and Götterdämmerung).

BBC’s MUSICIANS’ GUIDE TO NOISE AND HEARING – PART II: TOOLKIT FOR MANAGERS publication explains the advantages and disadvantages of proximity between orchestral members.

‘Single vs. double ranking the brass: ideally the trumpets and trombones should be in a straight line as it is preferable to have more space in front; if there is limited space (and if risers permit it) a curved line can help to increase lateral space. On the other hand if there is too much space the brass ensemble suffers and it increases the number of string players in the firing line’.

Single Ranking Brass Configuration (less lateral space, but more space between strings):

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Double Ranking Brass Configuration (more lateral space, but less space between strings):

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In the ROH’s Ring Cycle production, in 2012, there were 4 trumpets, 4 trombones, 9 French horns and 1 tuba – 18 brass instruments in an orchestra of 96 players, plus 1 conductor. The violists were positioned immediately in front of the brass section, with ‘hardly any space’ between them. This meant that the violists at the last (furthest back) desk were ‘in the firing line’ of 4 trumpeters, including the principal (loudest) trumpeter.

Although the claimant had previously played in the ROH's Ring Cycle production in 2005 and 2007, the layout of the orchestral pit was not how he had anticipated.

NOISE PROTECTION AND THE ALLEGED EXPOSURE INCIDENT

The claimant had been provided with custom moulded 9 dB earplugs, in 2002, which were fitted by a specialist in Harley Street. 28 dB foam earplugs were also available to the claimant when required. In addition, the ROH trained and educated the claimant about the potential dangers of excessive noise exposure, from August 2005 onwards, as documented in his personnel file.

Normally, the 9 dB earplugs did not offer the claimant sufficient protection when the music was very loud, while the 28dB earplugs made it difficult to for him hear his own instrument, let alone the others.

Within 3 seconds of Die Walküre rehearsal commencement, on the morning of 1 September 2012, the claimant switched to the 28 dB earplugs, after having realised that the 9 dB earplugs did not provide effective protection.

The bell of the principal trumpeter’s instrument was in very close proximity to the claimant’s right ear and playing a musical score that he was not prepared for and ‘different to anything he had previously experienced’. The noise exposure was still ‘overwhelming’, even with protection:

‘It was excruciatingly loud and painful’.

Succeeding the morning rehearsal, the ROH Operations Manager was warned by a violist that the noise levels were too high and an incident investigation was opened. Dose meters recorded noise levels in the afternoon session.

After having consulted the conductor and the viola and trumpet sections, the decision was made, on 3 September, to rearrange the orchestral pit by extending the distance between the brass and viola sections by 1 metre and reallocate the remaining brass players to another part of the pit. Dose meter measurements ‘significantly decreased’, although the ROH attributed this to the fact that the conductor was rehearsing less noisy sections of the opera and it was a stop-start rehearsal’.

A comparison of the noise levels pre- and post- re-arrangement can be observed in the table below:

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THE COURT OF APPEAL ON BREACH OF DUTY

At the High Court,[2] (we reported on the decision here and here) the claimant pleaded that the defendant employer was in breach of the Control of Noise at Work Regulations 2005.

Regulation 6

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Given that the claimant’s daily noise dose was above the upper exposure action value (UEAV) [85 dB(A) Lep,d], the defendant was obliged, under Regulation 6, to reduce noise exposure as far as was ‘reasonably practicable’, by employing a ‘programme of organisational and technical measures (excluding the provision of personal hearing protectors)’.

Mrs. Justice Nicola Davies, at the court below, acknowledged that the defendant could not eliminate the risk of noise exposure, while the defendant contended that playing quieter would have unreasonably compromised the artistic output of the orchestra’.

However, she found that the defendant had not followed the HSE publication: Sound Advice: Control of Noise at Work in Music and Entertainment (2008), which recommended that orchestras play quieter at rehearsals; nor had it heeded the ‘single vs double ranking of brass’ issue (described above); nor had it obtained live time readings; nor had it introduced measures other than the provision of hearing protectors, to be used at the players’ discretion.

The defendant was therefore in breach of Regulations 6(a) and 6(b):

‘However laudable the aim to maintain the highest artistic standards it cannot compromise the standard of care which the ROH as an employer has to protect the health and safety of its employees when at their workplace’.

On appeal, Lord Justice McCombe and Lord Justice Bean considered that the defendant ‘fell well short of establishing the defence at the trial’, referring to the table (above) as the ‘most damning single piece of evidence’.

In order to surpass the hurdle of Regulation 6, the judges gave examples of how the defendant could have discharged its duty:

  1. By showing that ‘a level of 91-92dB(A) is regularly reached in public performances of Wagner operas at the ROH whatever the configuration of the pit, whatever the number of brass instruments used and whoever is conducting’.
  2. By showing that ‘to keep within the upper EAV would mean that Wagner could not be performed at all at the ROH, or that his works could be performed only in a way which would compromise artistic standards to an unacceptable extent’.
  3. By showing that ‘the only way in which the rehearsals could have been scheduled is on the basis of six hours rehearsal per day on consecutive days, with no consideration being given to whether it was essential for the loudest passages to be played again and again throughout the day at full volume’.

It was pivotal to the Court of Appeal ruling that the orchestra was re-configured and that there was no evidence to suggest that there had been ‘an unacceptable reduction (or indeed any reduction at all) in the artistic standards of the Ring Cycle when it came to be performed in public’, as a direct consequence.

The Defendant was a ‘long way’ away from proving that the Wagner repertoire would have to be entirely abandoned by taking precautionary measures. Section 1 of the Compensation Act 2006 did not apply.

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The fact that it was not reasonably foreseeable for noise exposure, at the levels recorded, to lead to sudden injury, was also seen to be ‘irrelevant’

Regulation 7

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Since the claimant’s daily noise dose was above the UEAV, it was necessary for the defendant to ensure that the noisy area (the pit) was designated a Hearing Protection Zone (HPZ) and also ensure that the wearing of hearing protection was both mandatory and enforced, ‘as far as was reasonably practicable’.

The defendant, at the High Court, was unsuccessful in arguing that, because the noisy area was inside an opera house and not a factory, it was exempt:

‘The Regulations recognise no distinction as between a factory and an opera house. As at the date of the claimant's accident a breach of the 2005 Regulations provided a basis for a claim in civil liability. Breaches of Regulation 7(3)(a) and (b) are directly relevant to the instruction given to employees for the wearing of personal hearing protectors in the orchestra pit’.

The Court of Appeal, on breach of Regulation 7, agreed with Davies J, at 1st instance, that there should have been a HPZ designation, with the appropriate signage.

However, in regards to the defendant’s alleged breach for failing to stringently enforce hearing protection 100% of the time, the appeal judges disagreed with the claimant’s submission:

‘We do not agree with the judge's apparent conclusion that Regulation 7(3) is to be interpreted in the absolutist way put forward by Mr Huckle, at least in its application to the playing of classical music and opera. "Reasonably practicable" is not the same as "physically practicable"’.

In support of their exceptional reasoning, McCombe LJ and Bean LJ made reference to ‘the phenomenon of occlusion caused by blowing into an instrument while wearing earplugs’, which was prevalent in brass players and would often make wearing hearing protection ‘unbearable’.

As such, the ‘collaborative and cooperative’ approach that the defendant had employed, with respect to hearing protection, satisfied the ‘reasonably practicable’ threshold. Flexible enforcement did not amount to non-compliance in this context.

Regulation 5

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Regulation 5 was only covered briefly by the appeal judges, as the majority of the discussion on the quality of the ROH Operations Manager’s risk assessment overlapped with duties encompassed within Regulations 6 and 7. However, as an additional observation, they noted that:

‘... there was a breach in that the risk assessment undertaken before rehearsals began did not include specific consideration of the expected level, type and duration of exposure including peak sound pressure; and there was no review of the risk assessment as the rehearsals went on’.

Thus, the Court of Appeal concluded that the defendant was in breach of its duty imposed by the 2005 Regulations.

THE COURT OF APPEAL ON CAUSATION

Having upheld the High Court’s determination on breach, it was necessary for the appeal court to consider whether it had erred in finding that the defendant’s breach had caused the claimant’s injury.

The claimant’s audiometry, post-incident, demonstrated high frequency hearing loss in the right ear. According to Mr Worthington, the consultant engineer, noise funnelled from a brass instrument is ‘highly directional’ and of ‘high frequency’.

Mr Parker, instructed on behalf of the claimant, produced a diagnosis of ‘acoustic shock’. Whereas, Mr Jones, instructed by the defendant, diagnosed Meniere's syndrome or endolymphatic hydrops.

On this issue, McCombe LJ and Bean LJ highlighted that neither medical expert was able to say that the claimant met ‘precisely all the customary criteria’ for their respective diagnoses.

Davies J preferred the evidence of Mr Parker and his diagnosis of so-called ‘acoustic shock’, despite the fact that ‘the concept of acoustic shock was relatively new’ to the medical sphere and the music industry.

Nevertheless, the High Court judge did not favour the claimant’s medical expert without reason:

‘There was obviously material evidence, albeit developing, that such a condition existed’.

On this basis, the Court of Appeal conceded:

‘In our judgment, the judge was entitled to reach the conclusions that she did as to the medical outcome of this sound exposure experienced by the respondent and her reasons for so doing are not capable of being sensibly undermined on this appeal’.

Full text judgment can be accessed here.

IMPACT OF THE DECISION

But for the court’s admission that ‘reasonable practicability’, when enforcing hearing protection in opera houses, should not be interpreted in an ‘absolutist way’, the Court of Appeal dismissed the appeal by consistently agreeing with the ratio of Davies J, at 1st instance.

In short, the defendant did not reduce noise exposure, so far as was ‘reasonably practicable’, and was only able to defend breach on the risk of unreasonably compromising ‘artistic standards’ on an ‘all or nothing’ basis. The Court considered that rehearsals could have been quieter and, indeed, should have been.

Moreover, the opera house pit was no different from a noisy section within a factory – it should have been designated a HPZ.

Most importantly, in an attempt to quell industrial concern over the ‘likely wider ramifications’ of upholding the High Court judgment, Sir Brian Leveson (the 3rd judge sitting) explained that Goldscheider would not have a ‘cataclysmic’ effect on ‘all music making in the UK’.

This was an issue, he assured, that was individual to the ‘overhang and ... limited room’ of the ROH – limitations that were fixed ‘within a matter of days’:

‘... it is not surprising that this claim succeeded ... the problems identified ... were all foreseeable and reasonably preventable’.

We last reported (here) that the losing party was likely to make an application for permission to appeal to the Supreme Court. Since judgment was handed down, the probability of a subsequent appeal has decreased.

If there is no appeal, then the Court of Appeal judgment serves as a useful reminder that:

‘... the risk of injury through noise is not removed if the noise – in the form of music – is the deliberate and desired objective rather than an unwanted by-product (as would be the case in relation to the use of pneumatic machinery)’.

 

[1] ‘Richard Wagner’ (English National Opera) <https://www.eno.org/composers/richard-wagner/> accessed 24 April 2019.

[2] [2018] EWHC 687 (QB).