UK: High Court Makes Noteworthy Acoustic Shock Finding

Goldscheider v Royal Opera House [2018] EWHC 687 (QB)

The High Court has found a classical musician is entitled to damages after suffering 'acoustic shock' whilst employed in the orchestra of the Royal Opera House. Whilst the judgment will certainly make entertainment venues and their insurers sit up and listen, the impact on claims volumes is likely to be more muted.

Background

The Claimant, Christopher Goldscheider, alleges that he suffered "acoustic shock" whilst rehearsing Wagner's Die Walkure with the Royal Opera House (ROH) in London in 2012.

Mr Goldscheider, a leading violinist with the ROH, alleges that his hearing was damaged as a result of sitting directly in front of an 18 strong brass section during orchestral rehearsals. It was alleged that the sound of the brass section peaked at 137 decibels, which is comparable to that of a jet engine.

The Claimant and other musicians were supplied with hearing protection to wear at appropriate times. The Claimant and the witnesses accepted that it was not reasonably practicable to wear ear protection all the time because they were unable to hear other musicians.

As a result of the alleged injury, the Claimant claimed that he is unable to listen to music and can no longer play professionally.

Judgment

Her Honour Judge Davies found that the Claimant suffered from 'acoustic shock'. Acoustic shock is usually brought on from a one-time exposure to excessive sound pressure. The ear can be exposed to short periods of sound in excess of 120 decibels without permanent harm, albeit with discomfort and pain. Long term exposure to sound levels over 80 decibels can cause permanent hearing loss.

Mr Goldscheider alleged that he had been exposed to short bursts of sound levels in excess of 130 decibels, yet his medical expert relied on audiologist studies which stated a range of 82 decibels to 120 decibels was sufficient to cause acoustic shock.

The judge found that that the noise levels on the afternoon of the rehearsal were "within the range identified as causing acoustic shock". It was determined that Mr Goldscheider's condition had been caused by the failure of the ROH to enforce the mandatory wearing of hearing protection in the orchestra pit at all times. In failing to do so, the ROH had breached its statutory duty under the Control of Noise at Work Regulations 2005.

The Court dismissed the defence argument that section 1 of the Compensation Act 2006 allowed the Court to assess a standard of care by reference to the desirability and demands of an activity, and that this should have been given consideration in assessing the ROH's responsibilities.

Furthermore, the Court dismissed allegations of contributory negligence on the part of the Claimant for his failure to leave the rehearsal when he became aware that the noise was causing him discomfort, instead stating that doing so by that point would not have prevented his injury.

What can we learn?

• The case is an example of the evolving nature of hearing loss claims; that are now moving outside of traditional occupational contexts.
• The case is fact specific and unlikely to open the floodgates for claims in other areas. Whilst it is clear that the Defendant breached their duty of care, it seems plausible on the facts that they had done everything reasonably practicable to protect the Claimant. Evidential assessment of practicability will need to be undertaken on a case by case basis.  
• Whilst HHJ Davies suggested that the concept of acoustic shock is "relatively new", there have been reports internationally of settlement of claims from divers arising from decompression damage and particularly from employees at call centres. Compensation has been paid in both types of cases due to the damage being reasonably forseeable.
• Acoustic shock claims are likely to be obvious on the face of it; they will arise from a specific event and not as a result of a chronic condition as with traditional NIHL claims. The judgment makes clear that the causative event can be less than acute, but needs to be more than chronic, to be actionable.
• Causation and limitation issues will prevent a deluge of claims. Claimants will need to show a proximate GP attendance indicating the damage complained of, which will operate to limit claims.
• Whilst breach of duty was clearly made out, given the Claimant and witnesses accepted that it was not reasonably practicable to wear ear protection all the time because they were unable to hear other musicians, the requirements on the ROH may be considered too onerous and effectively enforces an artificially high standard that is not achievable in practice. Indeed a plausible defence to any further claims of this nature would be that a defendant had done everything that was reasonably practicable in the circumstances.
• It is not unreasonable to state that the focus of preventative measures from employers previously has been on preventing prolonged exposure to sounds in excess of 80 decibels which can cause hearing loss. The specifics of the judgment suggest it is accepted that acoustic shock may occur at levels of exposure as little as 82 decibels (which is actually below current industry safety standards).
• European studies recently found there can be similar exposures to sudden loud noise in a classroom context, raising occupational and safeguarding issues. Is it unreasonable to suggest that a claim could be brought as a result of someone shouting within an office setting? It now appears possible based on examples in other jurisdictions. A claim in Australia for acoustic shock was dismissed, after the claimant alleged that a colleague's loud voice had left him with permanent hearing damage. Whilst that claim was unsuccessful, it demonstrates the application of Goldscheider will raise many questions in the UK, with many other jurisdictions likely to be looking again at claim parameters.
• Employers have previously concentrated on protecting employees from long term exposure to noise, given the known risk of noise induced hearing loss. However they now also have a duty to assess and mitigate risks arising from single exposures that could result in foreseeable injury to employees.
• Given the range of frequencies which the judgment suggested might result in acoustic shock (anything from 82 decibels upwards), we expect that there may be other satellite litigation on the levels at which acoustic shock actually occurs.Noise at the lower end of the scale in terms of the stated exposure range can occur during daily routine in workplaces, which is inconsistent with reported cases of acoustic shock.
• From a practical perspective, the judgment may lead to the use of amplification of classical music for the first time, although this is not likely to be welcomed by audiences.
• Claimant firms will trumpet this decision as a landmark judgment, but it is may be that the decision will be a prelude to an appeal directly to the Court of Appeal; any further developments will be awaited with interest.

This article was written by Toby Scott and Ruth Quinn.

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