In March 2018 the High Court handed down its decision in Goldscheider v The Royal Opera House Covent Garden Foundation  EWHC 687. The case involved a viola player who had suffered from “acoustic shock” as a result of being placed just a few feet in front of the horn section during a 2012 rehearsal of Wagner’s Die Walkure. Contributor Michael McCartney, Partner in the employment group at Fladgate.
Mr Goldscheider usually wore custom made ear plugs that reduced noise exposure by 9dB. However, he found them inadequate to deal with the noise that day and opted instead, during particularly loud sections of the piece, to wear foam ear plugs which had been provided by the ROH and which reduced the noise by 28dB.
Mr Goldscheider was not alone in suffering ill effects. Another viola player who attended the same rehearsal wore 28dB earplugs throughout. She provided evidence as to the wall of noise behind her. She also suffered short term effects such as dizziness, hearing loss and nausea. As a result of complaints that she and others made to the ROH, the noise exposure was measured throughout the afternoon rehearsal and adjustments were made to the orchestra layout the following day. By that time, however, Mr Goldscheider was too ill to attend. He was later diagnosed with suffering from the long term effects of “acoustic shock” which made it impossible for him to return to playing in the orchestra and ultimately led him to give up playing his instrument professionally due to the discomfort he suffered during prolonged noise exposure. He claimed loss of earnings amounting to £750,000 and compensation for his injuries as a result of the ROH’s failure to comply with their obligations under the Control of Noise at Work Regulations 2005 (“the Regulations”).
In its defence the ROH argued that it had done all that was reasonably practicable to comply with the Regulations. Musicians had been provided with ear plugs and were encouraged to use them during the performance albeit this was at their own discretion. Risk assessments of the noise exposure in the orchestra pit had been carried out regularly. It relied on the fact that as a performing company, exposure to noise was inevitable and its artistic integrity needed to be balanced with a strict adherence to the Regulations. In other words, Wagner’s production required a large orchestra with a significant horn section. It also argued that it was not commercially viable to enlarge the pit since this would involve closing the ROH for a period and removing the front two rows with a consequent loss of revenue.
Nevertheless, the Court held that these commercial and artistic considerations did not obviate the ROH’s obligations to protects its musicians. The Court was bound by the narrow meaning of “reasonably practicable” contained in the Regulations. This focused employers’ efforts on eliminating the risk altogether, such that they were bound to do whatever could be done, rather than being limited to that which was convenient. The ROH had failed to adhere to the Regulations. In particular, the ROH had not provided training. It had failed to instigate mandatory rules regarding the wearing of ear plugs in the pit and had not displayed signage to advise musicians of the dangers of prolonged noise exposure. Finally, it had failed to eliminate the risk at source until the following day when it rearranged the orchestra and redistributed the horn section. The ROH has appealed.
This is undoubtedly a difficult case. On the one hand, the ROH acted responsibly and took seriously the risk of harm by providing both custom made and foam ear plugs to reduce the noise impact. On the other, a musician has lost his livelihood and is suffering long term health consequences as a result of his participation in the rehearsal.
Unlike industrial noise which is a by-product of machines, tempering music to control noise levels undermines its artistic value. Schools, concert halls, theatres and outdoor arenas are all susceptible to the risk of claims flowing from this decision and, in particular, the compulsory requirement to wear ear protection during loud performances. A requirement which the ROH argued was impractical and unworkable given that musicians need to be able to hear the instruments without obstruction. The implication is that organisations may now be required to undertake costly renovation work to increase the space available for musicians where this is inadequate. The cost and commercial considerations were deemed by the judge to give rise to an insufficient justification for the ROH’s failure to implement these measures.
The Court of Appeal
Unsurprisingly, given the practical difficulties this decision presents for musical production companies, the ROH has chosen to appeal. However, as things stand it is difficult to see how there can be scope here for a different outcome given the clear requirements of the Regulations, however cumbersome and ill-suited they may appear for an opera house or other musical venue. These difficulties were foreshadowed at the time the Regulations came into force and as a result their implementation for the music and entertainment industry was delayed. This issue is unlikely to recede without government intervention to broaden the scope of the “reasonably practicable” defence so that issues of commercial practicality and considerations of artistic merit/desirability can be weighed in the balance. If not, then the casualties of a hard case such as this are likely to be smaller venues which do not have the resources of the ROH and, of course, audiences who will be forced to pay higher ticket prices.