David Platt KC and Alexander Macpherson receive judgment from Court of Appeal in Goldscheider v Royal Opera House
Court of Appeal hands down judgment in Goldscheider v Royal Opera House
The Court of Appeal (Sir Brian Leveson, McCombe LJ, Bean LJ) has today handed down the keenly awaited judgment in Goldscheider v Royal Opera House. The Claimant contended that he had developed the controversial condition of ‘acoustic shock’ in September 2012 as a result of being exposed to noise in the course of rehearsing Wagner’s opera Die Walkure. At first instance Nicola Davies J had entered judgment for the Claimant on the basis that the Royal Opera House should have enforced the wearing of hearing protection at all times for members of its orchestra. The Royal Opera House appealed on the basis that this approach was not reasonably practicable and would have catastrophic consequences for the performance of orchestral music in the United Kingdom.
The Association of British Orchestras, the Society of London Theatres and the UK Theatre Association all obtained permission to intervene in the appeal and support the Royal Opera House’s position. The case was listed as one of The Lawyer’s Top 20 cases of 2019.
In its judgment, the Court of Appeal dismissed the appeal, but for reasons which were different to those put forward by Nicola Davies J. Crucially, the court reversed the finding in relation to hearing protection, and held that the Royal Opera House’s approach of encouraging the wearing of hearing protection as much as possible, but ultimately leaving it up to the musicians as to when they did so in the course of performing, was a reasonable one. It was held that there was no breach of duty in relation to the wearing of hearing protection.
However, the court found that after the incident had been reported to the Royal Opera House it had reconfigured the orchestra in order to reduce noise levels at the location in the pit where the Claimant was sitting. The court concluded that this could reasonably have been done at an earlier stage, and that therefore the Royal Opera House had not taken all reasonably practicable steps to reduce noise levels on this occasion.
In terms of factual causation, the Court of Appeal applied Ghaith v Indesit [2012] EWCA Civ 642, and found that the burden of proof was on the Defendant to show that the breach was not causative of the injury. It was held that the Defendant had failed to demonstrate this.
As for medical diagnosis, on which the Royal Opera House had also obtained permission to appeal, the Court of Appeal acknowledged that this was “obviously a close debate”. However, they concluded that there was no sufficient basis for them to interfere with the judge’s decision at first instance that the condition of acoustic shock existed and that the Claimant had developed it in the course of the rehearsal.
The Royal Opera House’s application to the Court of Appeal for permission to appeal to the Supreme Court will be determined no earlier than 30 April.
David Platt KC and Alexander Macpherson (instructed by Nigel Lock at BLM) represented the Royal Opera House at first instance and in the Court of Appeal.
A copy of the judgment of the Court of Appeal can be accessed here: Goldscheider v ROH Judgment.
