UK: Goldscheider Appeal: Orchestral Manoeuvres In The Court

Last Updated: 3 May 2019
Article by Toby Scott

The Court of Appeal has handed down judgment on an important appeal which is both positive and negative for entertainment venues and their insurers.

Whilst the appeal of the Royal Opera House was dismissed, the reasoning differed from the findings given at first instance in the High Court. The Court of Appeal reversed the finding in respect of the wearing of hearing protection.

The decision will be viewed positively by entertainment venues and insurers. The consequences of the initial High Court judgment would have placed too arduous a requirement on venues to enforce the wearing of ear protection at all times. It would have effectively enforced an artificially high standard which would not have been practicable.


The Claimant, Christopher Goldscheider, alleged he suffered "acoustic shock" whilst rehearsing as a leading violinist with the Royal Opera House orchestra ("ROH") in 2012. The Claimant claimed that he is unable to listen to music and can no longer play professionally.

He alleged his hearing was damaged as a result of sitting directly in front of the brass section during rehearsals in the orchestral pit, the sound of which allegedly peaked at 137 decibels.

At first instance, Her Honour Judge Davies found that the Claimant had suffered from acoustic shock, brought on from a one-time exposure to excessive sound pressure. The Claimant and the witnesses accepted that it was not reasonably practicable to wear the provided ear protection all the time because they were unable to hear other musicians.

Nonetheless, it was determined that Mr Goldscheider's condition had been caused by the failure of the ROH to enforce the mandatory wearing of hearing protection in the orchestra pit at all times, as well as other breaches of statutory duties under the Control of Noise at Work Regulations 2005.

The Defendant's subsequent application for permission to appeal was granted.

The Association of British Orchestras, Society of London Theatre and UK Theatre Association were also granted permission to intervene in support of the Defendant.

Court of Appeal

The Court of Appeal dismissed the appeal, upholding the initial decision on liability in favour of Mr Goldscheider, "albeit on narrower grounds" that those at first instance.

In respect of the breaches of duty found by HHJ Davies, the Court of Appeal agreed that the ROH had been in breach of the duties imposed by Regulations 5, 6(1) and 6(2) of the Control of Noise at Work Regulations 2005.

In particular relating to Regulation 6, the alterations to the orchestral pit layout made following the injury "do not demonstrate liability retrospectively, but they do make it very difficult for the Defendant to prove that all reasonably practicable steps had been taken."

However, noting that the initial findings on the issue of hearing protection under Regulation 7 would have "caused considerable concern in the industry", the Court of Appeal "disagreed... that the risk assessment ought to have imposed more stringent requirement for the hearing protection," and set aside the finding of a breach of this Regulation.

The Court of Appeal accepted the ROH position that "it was not reasonably practicable for players in their orchestra pit to perform" if required to wear hearing protection throughout.

The decision on causation was also upheld, as it was found that "noise levels reduced at the rehearsal... when the pit configuration was changed", and the failure to do this sooner was the factual cause of the Claimant's injury.

On the issue of medical causation, the judgment found that there was no reason to revisit the original decision as "the judge was entitled to reach the conclusions she did."

What can we learn?

  • Entertainment venues will find some relief in the appeal court decision that it was too onerous a task to expect the ROH to enforce the wearing of hearing protection on a continual basis. However, it must be reiterated that the Court of Appeal agreed with the original decisions on the failure to give specific consideration during risk assessment to the expected type, level and duration of exposure, and the failure to reduce noise levels in accordance with the Regulations. We expect this finding will result in further discussions on the potential liability of entertainment venues.
  • Regarding the interventions, Lord Justice Leveson provided additional comments on the "cataclysmic scenario" it was believed that the initial judgment would bring about for music making in the UK. He disputed that this decision would have such a wide ranging impact, commenting that for most venues "space will not be the problem that it is at the ROH", but that it did "underline the obligation placed on orchestras to comply with the requirements of the legislation."
  • The Court of Appeal elected not to interfere with the first instance on the issue of the medical evidence despite accepting this to be "a close debate". The Court of Appeal made clear that the issue of medical causation "was precisely the type of dispute between experts that a trial judge is best placed to assess".
  • This can be interpreted as confirming that 'acoustic shock' is now an accepted concept, albeit the exact science behind it remains imprecise. The Claimant's medical evidence relied upon audiology studies which suggested that a decibel range of 82 to 120 was enough to cause acoustic shock. We expect that further satellite litigation on the levels at which acoustic shock occurs will result.
  • In the absence of further case law currently, it is now arguable that a single acoustic exposure of 82 decibels or more could result in a claim (subject to appropriate proof of causation); employers may now be expected to consider additional risks and exposures than previously thought.
  • This appeal finding will make plenty of noise but once again, it is understood that the Royal Opera House are considering making an application for permission to appeal to the Supreme Court.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions