Articles - Jonathan Clarke successful in Goldscheider v Royal Opera House Covent Garden Foundation

Personal Injury - Jonathan Clarke

Goldscheider v Royal Opera House Covent Garden Foundation [2018] EWHC 687 (QB) (Nicola Davies J)

A Brief Summary

The claimant was a viola player employed by the defendant in the orchestra of the Royal Opera House in Covent Garden.  In September 2012, aged 42, he was taking part in orchestra rehearsals for a production of Wagner’s Ring Cycle.  The seating in the orchestra pit had been rearranged so that the entire brass section was collected together.  This was for artistic reasons.  The claimant’s position was immediately in front of the brass section.  The orchestra pit was cramped. There was little room between the musicians.  During the rehearsal, concerns were raised by a number of orchestra members about the noise levels in the pit.  As a result, various members of the orchestra (including the claimant) were fitted with dosimeters (personal noise meters).  When the dosimeter readings were later reviewed they showed that a number of the musicians (including the claimant) had been exposed to noise levels well in excess of the upper exposure action value (“EAV”) of 85 dB(A) LEP,d prescribed by the Control of Noise at Work Regulations 2005.

During the course of the rehearsal, the claimant (who had hearing protection with him) developed symptoms of what was subsequently diagnosed as “acoustic shock injury”.  As a result of the severity of his symptoms, the claimant was unable to continue playing and was subsequently medically discharged from the orchestra.  He has been unable to pursue his career and principal pastime of playing music.  He claimed damages from the defendant for breach of the 2005 Regulations.  The defendant denied breach of duty and causation of any injury.  The defendant relied upon expert medical evidence that the alleged acoustic shock injury was in fact Meniere’s disease (a non noise related medical condition) which happened to have coincidentally become symptomatic during the rehearsal.  The defendant also alleged contributory negligence based upon the claimant’s failure to have worn the available hearing protection at all times when the noise seemed too loud or his failure to have walked out of the rehearsal.  The issues of breach of duty and causation of injury were tried as preliminary issues by Nicola Davies J.

In view of the date of injury, this was a claim which was unaffected by the amendments to s.47 Health and Safety at Work etc Act 1974 which had been made by s.69 Enterprise and Regulatory Reform Act 2013.  The claimant alleged that the defendant was in clear breach of the duties imposed by the Control of Noise at Work Regulations 2005.  The defendant argued that those duties were limited to what was reasonably practicable and that it had not been reasonably practicable to have complied with the requirements of the Regulations as to do so would interfere with considerations of artistic integrity.  In any event, the defendant had investigated various methods of noise reduction all of which had been, for one reason or another, unsatisfactory.  The only effective solution was the one adopted, namely to provide each musician with a range of personal hearing protection (ear plugs and muffs) which the musician could use as and when he or she felt was necessary.  The defendant also argued that requiring it to comply strictly with the 2005 Regulations would prevent or deter the desirable activity of professional orchestra playing and that was a result which s.1 Compensation Act 2006 required the court to avoid.

In a reserved judgment following an 8 day trial, the judge found in favour of the claimant for the following reasons.

The purpose of the 2005 Regulations is stated in reg.3(1) as “protecting persons against risk to their health and safety arising from exposure to noise at work.”  By reg.2(1), “noise” means any audible sound.  The risk to which the Regulations related were not limited to the more usual risks arising out of noise exposure at work (such as NIHL caused by ongoing long term daily noise exposure, or the pathological damage inflicted by extreme noise levels) but could include risk of rarer types of noise induced injury, such as acoustic shock injury.  Provided that some form of noise related personal injury was foreseeable, then the 2005 Regulations were engaged even though the claimant’s particular type of noise related injury may not have been foreseeable – Page v Smith [1996] 1 AC 155 (HL) applied.  It was foreseeable that exposure to the levels recorded by the dosimeter gave rise to a risk of personal injury.  Therefore the Regulations applied.

The defendant’s contention that artistic integrity dictated the limits of what was reasonably practicable was rejected.

“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”

 

Reg.5 of the 2005 Regulations imposed detailed requirements for an assessment of noise related risks.  A number of those requirements had not been complied with.  Contrary to reg.5(3)(a) the defendant’s risk assessment had not included specific consideration of the level, type and duration of exposure including peak sound pressures.   Contrary to reg.5(4) the risk assessment had not been reviewed when the new orchestra layout had been adopted.

Reg.6(1) of the 2005 Regulations required the defendant to eliminate risk from noise exposure if reasonably practicable to do so or, if not reasonably practicable, to reduce that risk as far as reasonably practicable.  The duty was to eliminate/reduce the risk “at source”.  The burden of proof of reasonable practicability rested on the defendant -- Baker v Quantum Clothing Group Ltd [2011] UKSC 17, [2011] 1 WLR 1003.  An obvious means of reducing the risk at source was to direct the orchestra to play quieter in rehearsals.   Another was not to have positioned all the brass together.  If the Defendant had complied with its duties under reg.5 and given proper consideration to the noise risks and its duty to avoid them, then it would have measured the noise levels and realised the risks and acted to prevent them as required by the Regulations, but it did not.  There was no evidence that it had not been reasonably practicable to do so.  Therefore the duty under reg.6(1) had been breached.

Reg.6(2) was engaged because the claimant’s exposure had exceeded the upper EAV of 85 dB(A) LEP,d.  Therefore the defendant was required to reduce the claimant’s exposure to as low as reasonably practicable by appropriate means other than hearing protection.  As the only method which the defendant adopted to reduce noise exposure was the provision of hearing protection, the defendant was in breach.

Reg.7(3) required the orchestra pit to be demarcated as a hearing protection zone where the wearing of hearing protection was compulsory because the noise levels in the pit regularly exceeded the upper EAV of 85 dB(A) LEP,d.  The duty under reg.7(3) was strict and not limited by reasonable practicability.  The defendant had not complied and was in breach.

Reg.9 required the employer to perform health surveillance.  There was however no duty to release the results in breach of the employee’s confidentiality.  The Defendant did perform some health surveillance of the claimant.  It was not in breach of the duty under reg.9.

Reg.10 required the defendant to provide the claimant with instruction and training regarding the risks to which he was exposed and the methods by which he could avoid or reduce those risks.  The failure to have instructed (not just advised) him to wear hearing protection in the orchestra pit was a breach of duty which in turn led to the breach of reg.6.

The Defendant’s reliance on s.1 Compensaton Act 2006 provided it with no assistance.  It could not excuse the clear breaches of duty.

As the defendant had left it to the musicians to decide when to wear the provided hearing protection, it was not contributory negligence for the claimant to wear it only when he thought it was necessary.  However when he found that (despite wearing the protection) the noise levels were unbearable he ought to have complained or left the rehearsal.  There was no evidence that his failure to do so was contributory to his injury, therefore the allegation of contributory negligence failed.

On the facts, the Claimant had suffered acoustic shock injury.  Such an injury was not limited to those, such as telephone operators, who wore headsets.  On the balance of probabilities, the cause of the injury had been the excessive level of noise to which the claimant had been exposed at the time of the onset of the symptoms of his injury.

Judgment for the Claimant for damages to be assessed.

A copy of the judgement can be found here.

 

Judge:

The Hon Mrs Justice Nicola Davies DBE

Counsel:

Theo Huckle QC, Jonathan Clarke for the claimant

David Platt QC, Alexander Macpherson for the defendant

Solicitors:

Fry Law for the claimant

BLM Law for the defendant

Medical experts:

Andrew Parker for the claimant

Philip Jones for the defendant

 

COMMENT:

(1) This decision confirms that the duty to comply with health and safety regulations, such as the Control of Noise at Work Regulations 2005, applies to all employers and is not subject to concerns of artistic integrity.

(2) This decision establishes that acoustic shock can be sustained outside of the world of call centres and telephone operators.  Claimants suffering acoustic shock injury will still need to prove it and to discount competing diagnoses such as Meniere’s disease.

(3) The trial of the preliminary issue took 8 days of court time and involved seriously contested medical and acoustic engineering evidence.  By reason of his injuries, the claimant was impecunious and could not afford legal representation.  He was only able to pursue his claim because his legal representatives agreed to act on a “no win, no fee” arrangement.  This exposed them to considerable personal financial risks without which the claimant would not have had access to justice and would have been deprived of his entitlement to damages for the life changing injury he sustained.

 

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