Acoustic shock appeal is dismissed

Royal Opera House Covent Garden Foundation v Cristopher Goldscheider Interveners; Association of British Orchestras, Society of London Theatre and UK…

Background

The respondent was employed as a viola player in the Royal Opera House (“ROH”). On the 1 September 2012 during a rehearsal of Wagner’s Die Walküre, the respondent was exposed to a loud burst of noise emanating from the brass section positioned immediately behind him. This caused him to develop a number of symptoms to include temporary hearing loss, tinnitus and hyperacusis (sensitivity to loud noise) which was ultimately defined as ‘acoustic shock’.

Ultimately, this compromised the respondent’s employment. He brought a claim against the ROH for damages for personal injury to include loss of earnings.

The High Court Decision

The issues of breach of duty and causation were tried before Nicola Davies J in the High Court. Her Judgment (28 March 2019) found in favour of the respondent, namely that the ROH had breached their duty under The Noise at Work Regulations (2005) (“the 2005 Regulations”) as set out below:

  • Breach of Regulation 5 in that the ROH had failed to conduct a suitable and sufficient risk assessment
  • Breaches of Regulation 6 (1 and 2) as there had been failure to eliminate the noise at source or reduce noise to its lowest level reasonably practicable without the use of hearing protection
  • Breach of Regulation 7 as the ROH had failed to demarcate the orchestra pit as a hearing protection zone and ensure the mandatory wearing of hearing protection; and
  • Breach of Regulation 10 for failure to provide sufficient instruction and training on the issues of noise risks and hearing protection

The High Court rejected the appellant’s submissions that The Compensation Act (2006) could assist on the basis that this was a ‘desirable activity’ and should prevent the imposition of civil liability.

Further, the High Court preferred the evidence of Mr. Parker (medical expert instructed by the respondent) that the respondent had developed acoustic shock consequent to exposure rather than the evidence of Mr. Jones (medical expert instructed by the appellant) that the respondent had developed Ménière’s disease.

In reaching a conclusion, the High Court referred to medical research which supported acoustic shock eventuating at levels of noise as low as 82 dB (A) – just louder than the noise generated by a domestic vacuum cleaner.

The appellant appealed the decision on all grounds.

Court of Appeal Judgment

The Association of British Orchestras, Society of London Theatre and UK Theatre (“the Interveners”) were granted permission to intervene in the appeal in light of wider concerns expressed over the ramifications of the High Court judgment. These centered around the difficulty and impracticalities of wearing hearing protection whilst performing – it being admitted as one facet of the case that some brass players suffered an occlusion effect (a painful condition caused through the blowing out on wind instruments) whilst wearing hearing protection.

In its judgment handed down on the 17 April 2019, the Court of Appeal unanimously dismissed the appeal, albeit finding for the respondent on narrower grounds than Davies J in the High Court.

The leading judgment was delivered jointly by Lord Justices McCombe and Bean with which the President of the Queen’s Bench Division, Sir Brian Leveson agreed. The Court of Appeal upheld the High Court’s findings in relation to the breach of both Regulation 6 (1) and (2), in that the ROH failed to demonstrate that they had taken all reasonably practicable measures to reduce noise risks – citing the reduction of noise levels following a post incident reconfiguration of the orchestra.

However, the Court of Appeal declined to follow the High Court’s findings in respect of breaches of Regulations 5 and 10 – and of most relevance, Regulation 7 – a failure to ensure that orchestra members were wearing their hearing protection at all times. The Court of Appeal stated that the Regulations should not be interpreted in such an ‘absolutist way’.

The Court of Appeal declined to interfere with the High Court’s findings on medical causation. Whilst appreciating that the High Court had heard ‘rival theories’, the High Court would have been best placed to assess “the whole sea of evidence” whereas an Appellate Court would only be “island hopping”.

Sir Brian Leveson delivered a concurring judgment and additionally rejected the Interveners’ submissions that the judgment could lead to the curtailment of music making in the UK, prevent the performance of new works or lead to rescheduling of rehearsals (in the light of the employment of freelance musicians).

Sir Brian Leveson referred to the ability of the appellant to reposition or reconfigure the orchestra layout and that he felt that other orchestras were unlikely to suffer from the disadvantages of restricted space or roof overhang experienced by the ROH.

The Court of Appeal unanimously concluded that The Compensation Act 2006 would not be engaged.

Commentary

The fact that the appeal successfully overturned the trial judge’s findings on Regulations 5, 7, and 10 of The 2005 Regulations will be of some comfort both to the appellant and the Interveners, despite the Court of Appeal’s findings of a breach of Regulation 6 (1) and (2) and their refusal to interfere with the High Court’s findings on medical causation.

Acoustic shock is generally a poorly understood condition or collection of symptoms, hitherto seen principally amongst call centre workers. The acceptance that this can eventuate through one off sounds at relatively modest levels will be of concern for compensators. Further challenge to the principals of causation appears likely.

The more pressing question is where this leaves The 2005 Regulations which had at their heart the protection of workers against 2 main risks:

  1. hearing loss caused through long term exposure; and
  2. acoustic trauma.

Whilst recognising a lacuna within The 2005 Regulations and that acoustic shock could not have been reasonably been foreseen by the appellants, the Court of Appeal nonetheless applied the authorities of Hughes v Lord Advocate and Page v Smith which laid down the principal that it was necessary only for the defendants to have foreseen the “general harm” suffered to the claimant, i.e. damage to hearing.

It remains to be seen whether the principles of this case are ultimately determined by the Supreme Court.

Weightmans LLP represented on a pro bono basis the Interveners in this appeal – the Association of British Orchestras, Society of London Theatre and UK Theatre. Patrick Limb QC and Kam Jaspal of Ropewalk Chambers, Nottingham were instructed by Weightmans LLP.

For any further information regarding any aspect of the issues raised in this case, please contact Jim Byard, Partner on 0116 242 8914, or email him at jim.byard@weightmans.com

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