The material facts were succinctly summarised by Bean LJ in these terms:
“The 2012-13 season at the Royal Opera House (‘ROH’), Covent Garden, London opened with four cycles of Wagner’s Der Ring der Nibelungen. Rehearsals began on Thursday 30 August 2012. Christopher Goldscheider was among the viola players in the orchestra. By the end of the third day of rehearsals, 1 September 2012, he had suffered injury to his hearing which ended his professional career.”
The Control of Noise at Work Regulations 2005 prescribes three relevant statutory duties, the first being the most significant in the instant case: 1) Regulation 6 (elimination or control of exposure to noise at the workplace); 2) Regulation 7 (hearing protection); and 3) Regulation 5 (assessment of the risk to health and safety created by exposure to noise at the workplace). The Health and Safety Executive’s Sound Advice: Control of Noise at Work in Music and Entertainment (2008) provides practical guidance on ways to prevent irreversible hearing damage.
The ROH breached their statutory duties under all three Regulations, albeit it was accepted that it wasn’t reasonably practicable for players in the orchestra pit to perform wearing personal hearing protectors at all times. The failure to take the necessary steps to reduce exposure to the lowest level reasonably practicable left it open to the appellant to show that the breach did not cause the injury. The medical evidence accepted by the trial judge, however, established causation. The appeal court was not invited to re-visit the detail of this evidence, “and it would have been unrealistic to do so”. As Sir Brian Leveson, P concluded:
“[This case] 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) … ”