Musician Chris Goldscheider, 45, was told he could never play in an opera or orchestra again after injuries sustained during a performance of Wagner’s powerful Die Walküre (The Valkyrie) opera on Saturday 1 September 2012. After feeling dizzy and sick following the event, he contracted high frequency hearing loss in his right ear and has ongoing increased sensitivity to sound, it was heard.
The facts of the case were heard again at the appeal on 17 April. Mr Goldscheider had been sitting with ‘hardly any space’ between himself and the 18 piece trumpet section. Although he had used earplugs, he said even then ‘the noise was overwhelming’. “It was excruciatingly loud and painful. His right ear was particularly painful because the principal trumpet was directed at that side of his head,” read the judgment.
BLM law firm, representing the ROH, denied Mr Goldscheider's injuries had been ‘directly causative’ of its failures.
Appeal judges Sir Brian Leveson, Lord Justices McCombe and Bean for the Queen’s Bench Division however upheld the judge’s order on liability in favour of the Claimant.
“There can be no doubt that the respondent truly suffers from the symptoms of which he complains or that they arose immediately after the relevant rehearsal,” said the judgment.
The fact the orchestra pit was reconfigured after the incident made it ‘very difficult’ to accept that all reasonably practicable steps had already been taken, they said. They concluded that ROH had breached Noise at Work Regulations 2005, sections 6(1) and 6(2).
They did allow a ‘narrow’ concession on one point, which was that ROH was not guilty for failing to enforce strict wearing of hearing protection. This was because the regulations exclude the provision of personal hearing protectors to fulfill obligations to reduce exposure to as low a level as is reasonably practicable.
The British Tinnitus Association welcomed the High Court Judgement: “We have been working with musicians and those attending concerts since our inception,” said David Stockdale, Chief Executive of BTA. “Throughout our history we have heard many cases of both musicians and audience members acquiring tinnitus after attending dangerously loud events.
"It is imperative musicians receive the same protection under law as other professions and hope this judgement goes someway to securing that."
Nigel Lock, Occupational Disease partner at BLM acting for Royal Opera House said: “No doubt the live music and entertainment industry will be heaving a sigh of relief that the blanket enforcement of protection for musicians at all times has been overturned.
"However the judgment fails to address a number of key issues around the causation of injury at an attenuated noise level at which it is not foreseen that harm can be caused and significant misconceptions in the evidence remain which is disappointing. It leaves many unanswered questions and uncertainties from a judgment we had hoped would bring more clarity to this contentious area.”
The Association of British Orchestras, Society of London Theatre and the UK Theatre Association had joined with the ROH to put the case forward following concern the ruling could impact on performance standards, such as if it would lead to mandatory wearing of earplugs.
Judge Sir Brian Leveson, concluding, said: “I simply do not accept that this cataclysmic scenario represents a proper understanding of the consequences of this decision. For most musical venues, space will not be the problem that it is at the ROH.”
“What the case does underline is the obligation placed on orchestras to comply with the requirements of the legislation.”