The outcome of this appeal could alter the extent of the duty owed to musicians when it comes to the risk of hearing damage.
Chris Goldscheider, a former viola player from Bedfordshire, claimed that his hearing was irreparably damaged during a loud rehearsal of Wagner’s Die Walküre in 2012. Goldscheider argued that he had been exposed to unacceptable noise levels. He had been sitting in the orchestra pit directly in front of the brass section and likened the decibels to that of a jet engine.
Goldscheider claimed that as a result of the damage to his hearing he could no longer play or even listen to music, which caused audio hypersensitivity, tinnitus and dizziness. He now has to wear ear defenders to carry out everyday household tasks such as preparing food. He was particularly upset about not being able to hear his son play music, as he is one of the country’s greatest young French Horn players.
Goldscheider brought his claim before the High Court. In March 2018 a landmark decision was made. Judge Nicola Davies ruled that the Royal Opera House had breached its duty to Goldscheider and caused his injuries.
The judge found that although earplugs had been provided they offered insufficient protection. It was also ruled that it should have been compulsory for all of the orchestra to wear ear protection at all times. Despite wearing earplugs Goldscheider suffered acoustic shock in his right ear.
The level of Goldscheider’s compensation was to be assessed at a later date. Goldscheider maintained that he could no longer work as a musician with his condition. His loss of earnings claim alone amounted to £750,000.
The Royal Opera House was 'surprised and disappointed' by the High Court's judgement. It has since been granted permission to challenge the decision at the Court of Appeal.
Within its appeal, the Royal Opera House is expected to argue that it took adequate steps to minimise exposure to high volume by using sound absorption and reflection equipment. It also provided ear plugs, which Goldscheider had chosen not to wear, throughout the entire rehearsal.
It is anticipated that the Royal Opera House will highlight that all witnesses, including Goldscheider himself, accepted that it was not practical to always wear ear protection as it made it impossible to hear some parts of the music. It will also assert that hearing damage is an inevitable risk that all musicians take when playing in an orchestra.
Whatever the Court of Appeal’s decision it will have huge implications for the health and safety of those involved in the live music industry. This will include those who take part in school choirs, large orchestras and everything in-between.
A balance needs to be struck between the preservation of musical integrity and the safety of musicians. From an injury lawyer’s perspective, while it should be acknowledged that musical culture is important, for those who suffer serious preventable injuries the consequences can be both life-changing and life-long. The prevention of injury should therefore be given significant weight.
Where the balance lies will be for the Court of Appeal to decide. The appeal is expected to take place in 2019.
Ben Pepper is a senior solicitor in the complex injury department at Bolt Burdon Kemp