Thu 13 Jun 2019

Hearing loss for a musician. Who's to blame?

There have been several recent decisions from the Courts across the UK in industrial disease claims. This article provides a summary of these recent decisions and discusses the Courts' current approach to these types of claims.

In Christopher Goldscheider v Royal Opera House Covent Garden Foundation (2019) EWCA Civ 711  the claimant was a musician with the Orchestra of the Royal Opera House. He claimed that he suffered hearing damage (specifically "acoustic shock") due to the noise levels produced by his fellow musicians' instruments. This was despite wearing earplugs provided by his employer which reduced noise levels to below the statutory levels above which protective equipment was required.

In April 2019 the English Court of Appeal held that the claimant was entitled to damages for hearing loss, upholding the first instance decision. The Court held that the Royal Opera House failed to do everything reasonably practicable to reduce the risk of noise that the claimant was exposed to. In particular, the Court commented that the Opera House should have instructed its musicians to wear ear protection at all times during rehearsals and concerts. If they had done so, the risk of exposure to noise levels would have been significantly reduced. This was even though doing so would have meant that musicians would not be able to hear their fellow players while playing. The Opera House's failure to reduce noise levels to the lowest level reasonably practicable was the cause of the claimant's injury. His claim for damages therefore succeeded. 

In Lorna McGinley and Others v Fairfield Shipbuilding and Another family members of a deceased raised an action for damages against his former employers. They sought damages following his death from mesothelioma caused by asbestos exposure during his employment. The family members sought a Jury Trial. This was opposed by the employers, who argued that a Jury Trial could not be sought as the deceased's right of action had been assigned to his family members by his death, and that this was prevented by law (specifically prevented by section 22(4) of the Prescription & Limitation (Scotland) Act 1973).

In April 2019 the Court of Session, Edinburgh held that the family members' claim could proceed to a Jury Trial to determine the levels of awards of damages.  The Court held that the family members' were entitled to seek a Jury Trial, and were not prevented from doing so under statute.


In a recent article we discussed the current trend of Court decisions limiting the scope of vicarious liability.

However, these decisions suggest that the Courts are also seeking to compensate those suffering from, or those affected by industrial diseases, in as broad a range of circumstances as possible. This continues the trend seen during 2018 in cases such as Kay Gibson and Others v Babcock International Limited) in which the Courts awarded compensation to the family of a secondary victim of asbestos exposure, and was discussed in an article in 2018 . This also continues the trend being taken in other types of cases including historical abuse cases in which in Scotland the three year limitation period to bring claims for damages was removed by the Limitation (Child Abuse) (Scotland) Act 2017.

The decision in Clark suggests that the Courts are sympathetic to those suffering from noise induced hearing loss conditions, even where personal protective equipment provided by employers reduces the noise levels to beneath the statutory maximum levels, and even where it may not be practical or realistic for employees to wear ear protection at all times. This decision has significant implications for employers across a breadth of industries, including those not typically associated with noise induced hearing loss claims.

The decision in McGinley suggests that the trend for Juries to determine awards in fatal claims will also continue. Juries tend to make higher awards for loss of society and support in fatal cases, being sympathetic towards the family members of the deceased.

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