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Court Of Appeal upholds Royal Opera House hearing damage ruling

By Andy Malt | Published on Thursday 18 April 2019

The Royal Opera House in London has lost its appeal against an earlier court ruling that said the venue was liable for hearing damage sustained by viola player Christopher Goldscheider.

A panel of three judges at the Court Of Appeal unanimously upheld the earlier High Court ruling that the Royal Opera House had failed to take steps to protect Goldscheider from hearing damage during a rehearsal of Wagner’s ‘Die Walkure’. The impairment he suffered ended his career as a musician.

The ruling, the Royal Opera House and others have argued, has potential implications not just for classical music, but the entire live music industry.

Goldscheider said that he suffered hearing damage which made it impossible for him to work as a member of an orchestra. After a period of recuperation, he found that just being near the orchestra caused pain in his right ear, leaving him nauseous and dizzy. He now has to wear hearing protection to carry out simple household tasks, such as preparing food. He ultimately left the Royal Opera House in 2014 after being unable to return to work.

He said that during the rehearsal, the viola players had been placed directly in front of the brass section. This was unexpected and incredibly loud – something he and other players complained about. He added that, on the day he sustained his hearing damage, the principal trumpet was pointed directly at his right ear.

Although he wore hearing protection, he said that the noise was still overwhelming. Sound readings showed that noise levels reached over 130dB in the rehearsal. In court it was argued that ‘acoustic shock’ had caused Goldscheider’s hearing damage and that the Royal Opera House had not done enough to protect him from this.

In its defence, the ROH argued that ‘acoustic shock’ does not exist and that Goldscheider had simply developed Meniere’s disease – which results in symptoms similar to those he complained of – at the same time as the rehearsal. This, the judge in the original case said, was “stretching the concept of coincidence too far”. The venue also argued that a certain amount of hearing loss was justified in the pursuit of great art – an argument that was also rejected.

Although the ruling was upheld on appeal, it was relaxed slightly. The judges accepted the ROH’s argument that it was not practical for players to wear hearing protection at all times during rehearsals and performances.

In a statement, ROH chief executive Alex Beard said: “The original high court ruling, which stipulated that hearing protection must be worn by orchestral musicians at all times, was widely acknowledged by the live music and theatre industries as completely impractical with potentially devastating and far-reaching consequences for the entire sector, and we are pleased that this unworkable solution has been overturned”.

“We are, however, disappointed by other aspects of the appeal court’s ruling and will work closely with our insurers and legal team to explore our next steps”, he added.

In his own statement, Goldscheider said: “I am grateful to the court for acknowledging that more should have been done to protect me and other musicians from the risk of permanent and life changing hearing problems. We all want to find a way to participate and share in the experience of live music in a safe and accessible way and I hope that the guidance which the Court Of Appeal has given in my case will help others. I hope that the Royal Opera House will now support me to get on with rebuilding my life”.

Concluding the judgement, judge Brian Leveson disputed claims that the ruling would have devastating effects for any venue where music is played. “I simply do not accept that this cataclysmic scenario represents a proper understanding of the consequences of this decision”, he wrote. “For most musical venues, space will not be the problem that it is at the ROH”.

“What the case does underline”, he went on, “is the obligation placed on orchestras to comply with the requirements of [employment] legislation (having had two years within which to prepare). It emphasises that the risk of injury through noise is not removed if the noise – in the form of music – is the deliberate and desired objective rather than an unwanted by product (as would be the case in relation to the use of pneumatic machinery)”.

Whether or not this ruling does, in fact, have wider implications for the live music industry remains to be seen. This is certainly the first time that ‘acoustic shock’ has been given court recognition in this way. Damages to be awarded to Goldscheider are yet to be assessed.