The end of thrash metal

Goldscheider v Royal Opera House Covent Garden Foundation [17.04.19]

The Court of Appeal has rejected the Royal Opera House’s attempt to overturn an award of damages to a musician who suffered acoustic shock from playing in its orchestra – a decision which could be cataclysmic to the entertainment industry, with concerts and music gigs being treated equivalent to a factory, with little justification for excessive noise due to artistic value.

The decision also seems to ignore attempts by the government to tackle the compensation culture, including the requirement contained within the Compensation Act 2006, for courts to consider whether a decision might prevent a desirable activity from being undertaken, or discourage persons from undertaking that activity.

Background

Mr Goldscheider (the claimant) was a viola player in the orchestra of the Royal Opera House (the defendant). He suffered acoustic shock whilst rehearsing Wagner’s Die Walküre over a period of three days, despite being provided with and at times wearing earplugs, as the defendants concluded that they were the most effective noise protection for the risks posed by performance sounds.

The claimant had been sat in a cramped orchestra pit, with the brass instrument section behind him, with loud parts of the performance repeatedly rehearsed. He complained that his positioning created a wall of sound different from anything he had experienced before and the evidence provided showed the claimant was exposed to noise levels of between 91 and 92 decibels (db(A)) of the daily personal noise exposure (Lepd). This exceeded the 85dB(A) upper noise exposure limit (EAV) under the Control of Noise at Work Regulations 2005 (the Regulations).

Due to his injuries, the claimant was unable to continue to work as a musician and following the incident, the layout of the orchestra pit was rearranged reducing noise levels to 79dB(A)Lepd for the viola players.

At first instance, the High Court held it should have been compulsory for the orchestra to wear protection at all times during rehearsals and performances and as it was not, the defendant had not reduced the risk of injury to the lowest level reasonably practicable. The defendants appealed.

The decision

The Court of Appeal agreed with the decision at first instance and held that the defendant fell ‘well short’ of establishing it had reduced the risk of injury to the lowest level reasonably practicable. The most damning evidence was the rearrangement of the orchestra layout, which had reduced the noise levels significantly.

However, the Court of Appeal did not agree that it should be mandatory for hearing protection to be worn at all times, as this was not reasonably practicable to do so throughout the entire performance, since musicians could not hear the quieter passages.

Summary

It is unfortunate that evidence was not produced from the defendant that noise levels of 92dB were regularly reached in Wagner operas and that if kept within the EAV, Wagner could not be performed, or was artistically compromised, and that it was essential to play the loudest passages repeatedly at full volume. Without addressing these issues, the defendant failed to establish that it was not reasonably practicable to reduce the noise levels.

Despite this outcome, we do not believe it will have widespread implications for the entertainment industry, who are all too familiar with the draconian requirements under the Regulations, having been given a two year period of grace to implement them. Further, the Court of Appeal acknowledged that artistic value should still be preserved with their rejection of the argument that hearing protection needed to be worn by musicians at all times.

The claimant in this case succeeded due to its’ specific circumstances and a failure by the defendant to address the burden of proof upon it to show it had reduced of the risk of injury to the lowest level reasonably practicable. Future cases against the entertainment industry remain capable of being challenged however, employers must be more meticulous in the preparation of their defence.

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