News - Jonathan Clarke Successful in Court of Appeal Case of Goldscheider v Royal Opera House Covent Garden

Personal Injury - Jonathan Clarke

Goldscheider v Royal Opera House Covent Garden Foundation

[2018] EWHC 687 (QB); [2019] EWCA Civ 711

A Brief Summary

THE CLAIM

The claimant was a viola player employed by the defendant in the orchestra of the Royal Opera House in Covent Garden, London.  In September 2012, he was in the orchestra pit taking part in rehearsals for a production of Wagner’s Ring Cycle.  The pit was cramped. There was little room between the musicians.  For the rehearsal the seating plan in the pit had been changed in order to group the entire brass section together.  The claimant was positioned immediately in front of the brass and in their “direct line of fire”.  During the rehearsal, concerns were raised by various orchestra members about the how loud the music was.  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, see graphic below) had been exposed to noise levels well in excess of the exposure action values (“EAVs”) prescribed by the Control of Noise at Work Regulations 2005, but had not reached any of the exposure limit values.

 

Claimant’s noise exposure levels during the rehearsal

The claimant had personal hearing protectors with him which he wore whenever he felt the music was too loud.  During the course of the rehearsal, while his exposure was being measured by the dosimeter he was wearing, he developed symptoms of what was subsequently diagnosed as “acoustic shock injury”.  As a result of the severity of his symptoms, he was unable to continue playing and was subsequently medically discharged from the orchestra.  He was unable to pursue his career and principal pastime of playing music.  He claimed damages for his injury from the defendant, alleging breach of the 2005 Regulations.  The defendant denied breach of duty and causation of any injury.  The defendant relied upon expert medical evidence that there is no such thing as acoustic shock injury and, even if there was, the claimant had not suffered it.  He was suffering from Meniere’s disease (a medical condition unrelated to noise) which had coincidentally become symptomatic during the rehearsal.

The claimant alleged that the defendant was in clear breach of the duties imposed by the Control of Noise at Work Regulations 2005.  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 made by s.69 Enterprise and Regulatory Reform Act 2013.  The defendant argued that the key duties under the 2005 Regulations are limited to what is reasonably practicable and it was not reasonably practicable to have complied with duties which interfered with musical excellence and artistic integrity.  In any event, the defendant had investigated various methods of noise reduction each of which were for one reason or another deemed unworkable.  The only effective solution was the one adopted, namely to provide each musician with a range of personal hearing protectors (ear plugs and muffs) which the musician could use as and when he or she felt was necessary.  The attenuation afforded by the protectors reduced the claimant’s exposure to below 85 dB(A) Lepd which was a level which was safe and/or which gave rise to no foreseeable risk of injury.  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.  The defendant also alleged contributory negligence in that the claimant failed to wear his personal hearing protectors at all times that the sound levels justified it and he also failed to leave the rehearsal despite it becoming obvious to him that the sound levels were having a seriously adverse effect upon him.

THE TRIAL

The issues of breach of duty, causation of injury and contributory negligence were tried by Nicola Davies J as preliminary issues over 8 days in February 2018 and included a site view of the Royal Opera House.

In a reserved judgment, delivered on 28 March 2018, the judge found in favour of the claimant as follows.

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 relate are not limited to the more usual risks arising out of noise exposure at work (such as NIHL arising from long term daily exposure to excessive noise, or traumatic hearing loss, i.e. pathological damage instantaneously inflicted by extreme sound pressure levels) but includes risk of less common types of noise induced injury, such as acoustic shock injury.  Provided that some form of noise induced personal injury was foreseeable, then the 2005 Regulations were engaged even though the claimant’s particular 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 some sort of noise induced personal injury.  The Regulations applied to an opera house just as much as to a factory.

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 imposes detailed requirements for an assessment of noise related risks.  The defendant’s risk assessment failed to meet a number of those requirements.  Contrary to reg 5(3)(a) it had not included specific consideration of the level, type and duration of exposure including peak sound pressures.   Contrary to reg 5(4), it had not been reviewed when the orchestra’s seating plan was rearranged.  Therefore the duty was breached.

Reg 6(1) requires an employer 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 is to eliminate/reduce the risk “at source”.  The burden of proof of reasonable practicability rests on the defendant -- Baker v Quantum Clothing Group Ltd [2011] UKSC 17, [2011] 1 WLR 1003.  An obvious way to reduce the risk “at source” was to direct the orchestra to play quieter in rehearsals as advised by the HSE guidance (HSG260).   Another was not to position all the brass together so close to the claimant.  If the defendant had given proper consideration to the noise risks and its duty to avoid them, then it would have monitored the noise levels, identified the risks and acted to prevent them as required by the Regulations, but it did not do so.  There was no evidence that it had not been reasonably practicable to do so.  Therefore the duty was breached.

Reg 6(2) was engaged because the claimant’s exposure during the rehearsal exceeded the upper EAV of 85 dB(A) Lepd.  Therefore the defendant was required to reduce the claimant’s exposure to as low as reasonably practicable by appropriate means excluding personal hearing protectors.  As the principal method which the defendant adopted to reduce noise exposure was the provision of personal hearing protectors, the defendant was in breach.

Reg 7(3) required the orchestra pit to be demarcated as a hearing protection zone where the wearing of personal hearing protectors was compulsory because the noise levels in the pit regularly exceeded the upper EAV of 85 dB(A) Lepd.  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.  The failure to have instructed the claimant to wear personal hearing protectors at all times when playing in the orchestra pit was a breach of that duty which in turn led to the breach of reg 6.

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

Causation:  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 or ear pieces.  On the balance of probabilities, the cause of the claimant’s injury had been the excessive level of noise to which he had been exposed at the time of the onset of the symptoms of his injury.

Contributory negligence:  The claimant’s not wearing personal hearing protectors at all times but only when he felt he needed to was consistent with the advice given to him by the defendant.  It was not contributory negligence.  His failure to leave the rehearsal would have been contributory negligence if it was contributory to his injury, but the evidence did not prove that that was the case.  Therefore, damages were not to be reduced for contributory negligence.

The claimant was awarded Judgment for damages to be assessed and the defendant was refused permission to appeal to the Court of Appeal.

THE APPEAL

With the Court of Appeal’s permission, the defendant appealed.  The Association of British Orchestras, the Society of London Theatre and the UK Theatre Association were jointly permitted to be heard as interveners.

The appeal was heard over 2 days in March 2019 by Sir Brian Leveson (President of the Queen’s Bench Division), McCombe LJ and Bean LJ.  On 17 April 2019, in a reserved judgment, the court dismissed the appeal for the following reasons, which included overruling the trial judge in the defendant’s favour on certain points.

Reg 6 requires that risk from noise exposure be eliminated “at source” and that noise exposure be reduced by means “excluding” personal hearing protectors.  These are free standing duties and the provision of personal hearing protectors (as required by reg 7) is not relevant to whether they have been complied with. The burden of proof is on the defendant, as employer, to prove that it had not been reasonably practicable to reduce any further the risks from noise and the claimant’s exposure to noise.  The judge was correct to find that the defendant had not discharged that burden. “The most damning single piece of evidence” was the marked reduction in exposure levels measured after the orchestra had been further rearranged (in order to increase the violas’ distance from the brass) after the claimant was injured.  If it was reasonably practicable for noise levels to be lower after the claimant was injured, then it was difficult to see that it had not been reasonably practicable before.  There was insufficient evidence to support the defendant’s suggestion that the reason why the later rehearsal‘s sound levels were so much lower was because the later rehearsal had involved less playing and also involved quieter passages than the earlier rehearsal.  There was also no evidence in support of the contention that compliance with the Regulations was not reasonably practicable because it would mean loud compositions (such as many of Wagner’s) could no longer be performed without artistic compromise. The defendant was in breach of both regs 6(1) and 6(2).

This same lack of evidence also undermined the defendant’s case on section 1 of the Compensation Act 2006 and the assertions made by the interveners.

Reg 7(3): The sound levels in the orchestra pit exceeded the upper exposure action value of 85 dB(A) Lepd.  Therefore, reg 7(3)(a) & (b) required that the pit be designated as a hearing protection zone, which it had not been.  However the duty to ensure no employee enters such a zone without wearing personal hearing protectors is subject to reasonable practicability and it had not been reasonably practicable to require the musicians to wear personal hearing protectors at all times when in the pit because to do so impeded the quality of their performance.  Consequently there had been no breach of reg 7(3) and there was no need for the claimant to be informed (pursuant to reg 10) of a need to wear personal hearing protectors at all times when playing in the pit.

Reg 5: The judge was correct to find that the defendant was in breach of the duty (under reg 5) to carry out a risk assessment which included consideration of specified matters, such as peak sound levels.  However the breach was academic because of the established breach of reg 6.

As some form of noise induced injury was reasonably foreseeable, it mattered not that the claimant’s particular noise induced injury may not itself have been reasonably foreseeable: Hughes v Lord Advocate [1963] AC 837 and Page v Smith [1996] 1 AC 155 applied.

Causation: With regards causation, once an injured employee proves that, as a result of the employer’s breach of duty, the employee was exposed to noise likely to injure him and that he had sustained a noise inflicted injury, then causation is established unless the employer proves that the injury was not caused by the breach: Ghaith v Indesit Company UK Ltd [2012] EWCA Civ 642 applied, West Sussex County Council v Fuller [2015] EWCA Civ 189 considered and Clough v First Choice Holidays [2006] EWCA Civ 15 distinguished.

The judge was right to find that causation had been proved by the claimant.  Another viola player who was positioned close to the claimant during the rehearsal suffered the onset of similar symptoms to the claimant’s.  The other player’s symptoms receded when the orchestra was, after the claimant’s injury, re-arranged so as to increase the distance from the trumpets.  This showed not only that it had been reasonably practicable to achieve lower noise levels earlier but also that the symptoms suffered by the claimant and the other viola player were as a result of exposure to the sound levels in the pit.

As to the dispute regarding the correct clinical diagnosis of the claimant’s condition, “... in the end, it is not the label that matters but rather the connection of the undisputed symptoms with breach of the regulations, arising from the sounds to which the respondent was exposed”.

The interveners’ submission that the court’s application of the Regulations would curtail not only the defendant’s repertoire, but also “all music making in the UK – concerts, theatres, schools, the lot” was a “cataclysmic scenario” that did not represent a proper understanding of the consequences of the decision in this case.

The Court of Appeal dismissed the appeal and refused the defendant permission to appeal to the Supreme Court.

COMMENT

The Court of Appeal treated 85 dB(A) Lepd (the upper exposure action value) as the level above which “risk” arises.

Both courts proceeded on the basis that the employer’s duty to enforce the wearing of personal hearing protectors is imposed by reg 7(3).  Neither court referred to reg 8(1)(a).

The Court of Appeal accepted the defendant’s (and the interveners’) contention that what is reasonably practicable can be limited by artistic concerns.  It did not consider whether this accorded with the European Directives pursuant to which the 2005 Regulations were made.

Exempting the musicians from the obligation to wear personal hearing protectors because a number of the musicians believed it would interfere with the quality of their performance is likely to give rise to disputes as to whether the beliefs of workers in other industries would similarly entitle them to such an exemption.

Furthermore, in leaving it to the musician to decide when to wear personal hearing protectors, the employer was leaving it to the musician to do that which the employer claimed was not reasonably practicable for the employer to do itself.

Trial Judge:

The Hon Mrs Justice Nicola Davies DBE

(Trial judgment here)

Court of Appeal Judges:

Sir Brian Leveson (President of the Queen’s Bench Division)

McCombe LJ

Bean LJ

(Appeal judgment here)

Counsel:

Theo Huckle QC, Jonathan Clarke for the claimant

David Platt QC, Alexander Macpherson for the defendant

Patrick Limb QC, Kam Jaspal for the interveners

Solicitors:

Fry Law for the claimant

BLM Law for the defendant

Weightmans for the interveners

Medical experts:

Andrew Parker for the claimant

Philip Jones for the defendant

Acoustic engineering expert:

Kevin Worthington for the defendant

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