High Court: Viola player can claim damages for “acoustic shock”

Royal Opera House: No reported cases of acoustic shock

A viola player whose hearing was damaged during a rehearsal of Wagner’s Ring Cycle at the Royal Opera House (ROH) can claim damages for “acoustic shock”, the High Court has ruled.

Christopher Goldscheider is believed to be the first person in the music industry to have made a successful claim for acoustic shock.

Mrs Justice Nicola Davies said: “The concept of acoustic shock is relatively new and thus far primarily associated with reports emanating from call centres. Mr Jones, the defendant’s expert who retired from clinical practice some five and a half years ago, was dismissive of the concept.

“I do not regard the absence of reported cases of acoustic shock amongst professional musicians as being determinative on this issue of causation. Medical learning and knowledge is an evolving concept.

“The description of acoustic shock, namely an index exposure to any sound or cluster of sounds of short duration but at a high intensity reflects and is consistent with the evidence of the claimant as to the playing of the principal trumpet at or close to his right ear.

“The sound or sounds would have been unexpected because the claimant had only his own musical part in front of him, the trumpet player had his own part.”

The High Court heard in Goldscheider v the Royal Opera House Covent Garden Foundation [2018] EWHC 687 (QB) that Mr Goldscheider, aged 45, began playing the violin at the age of five and the viola from about 21. He studied in Prague and the UK, and in 2002 he joined the viola section of the orchestra of the ROH.

He was seated “directly in front of the brass section of the orchestra during a rehearsal of Wagner’s Ring Cycle” in September 2012 when the injury occurred, which had “prevented his return to music”.

The musician alleged that the ROH had breached its obligations under the Control of Noise at Work Regulations 2005, along with other regulations and its common law duties.

“Having played in orchestras throughout his professional life, the claimant was used to noise but the sensation from so many brass instruments playing directly behind him, in a confined area, at the same time at different frequencies and volumes, created a wall of sound which was completely different to anything he had previously experienced.

“The lack of space and the proximity of the trumpets to the claimant’s ears meant that he was in the brass section’s ‘direct line of fire’. It was excruciatingly loud and painful. His right ear was particularly painful because the principal trumpet was directed at that side of his head.”

Nicola Davies J said was “not uncommon” for musicians playing in the orchestra of the ROH to complain about noise levels and different methods have been used to attempt to reduce them.

She said that in its defence, the ROH said there was nothing in the “extensive available guidance” to suggest that acoustic shock was a recognised risk for musicians of which it should have been aware. There has never been a case of acoustic shock in the music industry.

The ROH argued that its conduct should “reasonably have been governed by the risk of established conditions, namely noise-induced hearing loss associated with long-term exposure”, or the risk of “acoustic trauma”, associated with peak exposure in excess of 135 decibels.

Nicola Davies J said the ROH claimed that exposure at around 90 decibels, the level experienced by Mr Goldscheider would only be expected, on a daily basis, to “cause a small amount of noise-induced hearing loss after a period of 10 years” and there was “no foreseeable risk of injury posed by such a level of exposure in the context of a single day’s rehearsal, particularly when hearing protection was worn”.

The ROH provided the claimant with “custom-moulded earplugs” shortly after he joined in 2002, fitted by a specialist in Harley Street. Additional foam earplugs, which gave greater protection, were provided at the entrance to the orchestra pit.

However, Nicola Davies J concluded: “I am satisfied that the noise levels at the afternoon rehearsal on 1 September 2012 were within the range identified as causing acoustic shock.

“The index exposure was the playing of the principal trumpet in the right ear of the claimant whether it was one sound or a cluster of sounds of short duration.

“It was that exposure which resulted in the claimant sustaining acoustic shock which led to the injury which he sustained and the symptoms which have developed, from which he continues to suffer.”

Nicola Davies J gave judgment for the claimant, with damages to be assessed.

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