In a recent case of interest to entertainment venues and their insurers, the Court of Appeal considered the potential liability of employers in respect of excessive levels of noise in the workplace.

Background

The Claimant, Christopher Goldscheider, was a viola-player employed under a full-time, non-exclusive contract with the Royal Opera House (‘ROH’). During rehearsals, Mr Goldscheider was placed immediately in front of the brass section in the orchestra pit. Rehearsals were very loud and although he tried using ear plugs provided, he experienced pain and hearing difficulties. The ROH investigated Mr Goldscheider’s complaints, and found that other orchestra members had similar concerns. The pit’s layout was rearranged to create wider gaps between musicians, and noise levels were monitored to ensure a decrease.

Following the incident, Mr Goldscheider attempted to return to work several times but found it impossible due to his ongoing symptoms. His employment at the ROH ended in July 2014 and he is no longer able to play in an orchestra. He therefore sought to claim against the ROH for personal injury caused by “acoustic shock”.

At first instance, Her Honour Judge Davies determined that the Claimant had suffered from “acoustic shock”, caused by the failure of the ROH to reduce noise exposure to as low a level as reasonably practicable, as well as other breaches of statutory duties under the Control of Noise at Work Regulations 2005 (the ‘Regulations’). In particular, it was noted that mandatory wearing of ear protection in the orchestra pit had not been enforced.

The ROH sought to appeal the decision, and the Association of British Orchestras, Society of London Theatre and UK Theatre association intervened on its behalf.

Court of Appeal decision

The Court of Appeal agreed with the decision that the ROH had been in breach of duties imposed by Regulation 6. Whilst it was accepted that the ROH had taken several steps (such as the use of hearing screens) in an attempt to reduce noise levels, the Defendant failed to show that it reduced the noise exposure to as low a level as was reasonably practicable, and that it took all reasonably practicable steps in doing so.

However, the Court of Appeal did acknowledge that it is not practicable for orchestra players to wear ear protection at all times. It therefore set aside the High Court’s finding that, in failing to enforce the wearing mandatory wearing of earplugs by orchestra players, the ROH had breached Regulations 7 and 10. This decision will be welcomed by music venues and their insurers, as venues will not now face the arduous task of enforcing the wearing of ear protection by employees at all times.

In respect of factual and medical causation, the Court of Appeal found that Her Honour Judge Davies was entitled to reach the conclusions that she did on the evidence provided, suggesting that “acoustic shock” is now a generally accepted concept. The appeal was dismissed.

Conclusion

Whilst the Court of Appeal’s decision offered some limited relief to entertainment venues, the case emphasises the liability of music venues where sufficient steps are not taken to reduce noise levels at source. The ROH is considering an appeal of the decision, so further discussion on this potential liability is likely in the near future.