A viola player who suffered a life-changing hearing injury, has won a High Court judgment against the Royal Opera House (ROH) for acoustic shock in the first case of its kind.
Professional musician Chris Goldscheider, 45, had been forced to give up his successful career playing in an orchestra, after just one day rehearsing that left him with irreversible hearing damage, it was heard in court on 28 March.
He had been playing on Saturday 1 September 2012 in the orchestra at the ROH during a rehearsal of Wagner's powerful Die Walkure opera.
Seated in the orchestra pit directly in front of the brass section, which included four trumpets, four trombones, nine French horns and one tuba, it was heard how the loud instruments were located immediately 'behind the claimant with hardly any space between them'. The claimant was in the “direct line of fire”: “It was excruciatingly loud and painful,” read the judgment given to court.
Over course of the day, noise levels exceeded at times 130 decibels, equivalent to that of a jet engine.
The court heard how Mr Goldscheider has been left with ongoing increased sensitivity to sound (hypercausis), hearing loss in his right ear and has been unable to continue working in orchestras, having left the ROH in July 2014 due to his health issues.
Particularly loud sections
The ROH had provided the claimant with custom moulded earplugs, fitted by a specialist in Harley Street, and he had been used to following usual practice in the orchestra to wear these during noisy sections of music.
However, on the day of the incident he did not have his own written musical part to make notations and prepare for such sections. “He was aware that [Wagner] has some particularly loud sections but did not accept that he knew the opera well,” read the judgment. Although ROH had prepared a risk assessment for a production, it did not include rehearsals, found the court.
In addition to the failure to enforce the mandatory wearing of hearing protection in the orchestra pit at all times, there had been a failure to undertake any monitoring of noise levels in the ‘cramped’ orchestra pit.
Justice Davies rejected the ROH’s contention the noise produced by the professional orchestra is not a by-product of its activities, as it is the product. “The Regulations recognise no distinction as between a factory and an opera house,” she said.
The ROH was found to have breached the Control of Noise at Work Regulations 2005, with damages to be assessed at a later date.
A message to the industry
David Platt QC, defending for ROH, said there has ‘never been a case of acoustic shock in the music industry’. But Davies agreed with Mr Goldscheider’s defence team that he had suffered from acoustic shock, a condition usually brought on from a one-time exposure to excessive sound pressure.
Commentators say the judgment will be a wake-up call to other venues to assess risks of impacts to all types of noise exposures. “Employers have previously concentrated on protecting employees from long term exposure to noise, given the known risk of noise induced hearing loss,” say Toby Scott and Ruth Quinn at law firm Clyde & Co.
“However they now also have a duty to assess and mitigate risks arising from single exposures that could result in foreseeable injury to employees.”
They add that 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’.
James Tingay at noise monitoring firm Cirrus Research said orchestras will need to re-assess their health and safety policies and procedures: “The High Court has sent a very clear message that they are not exempt from Noise at Work legislation."
Damages are yet to be decided. The Royal Opera House is also said to be considering appealing the decision calling it “a complex case" in a statement published on Classic FM’s website.