Goldscheider v The Royal Opera House  EWHC 687 (QB) – read judgment
The ROH has been found liable for failing to protect the hearing of its musicians and for causing acoustic shock to former viola player Chris Goldscheider. This is the first time a musical institution has been found responsible for damage to the hearing of musicians, and the first time that acoustic shock as been recognised as an injury sounding in damages. As the Media release on the judgement observed,
The decision leaves insurers for the ROH responsible for a £750,000 compensation claim, and legal costs in addition, an urgent need to re-think its policies and procedures, a possible re-design of “The Pit”, and probably claims against them by other musicians.
But the issues in this judgment were limited to breach of duty and causation of the claimant’s injury, with damages to be assessed later.
Mr Goldscheider said he had sustained acoustic shock during the course of his employment at the ROH on Saturday 1 September 2012 when the orchestra was in the pit rehearsing Wagner’s ‘Die Walküre’. As a result of the way that the conductor arranged the orchestra, the Claimant was positioned immediately in front of a group of about 18 to 20 brass players. In particular the claimant pleaded breaches of the defendant’s obligations under the Control of Noise at Work Regulations 2005. These regulations include the undertaking to provide employees with suitable hearing protection when noise levels exceed 80 decibels. The average noise level to which the claimant was exposed during the three hours, 15 minutes and 24 seconds representing the total measuring period was 91.8 dB.
The effect of the acoustic shock has been to prevent his return to work.
The defendant argued that the noise produced by the professional orchestra is not a by-product of its activities, as specified by the Regulations, it is the product. Safety standards to be imposed upon it should take into account the aesthetic and technical demands to which the defendant and its players are subject by the nature of their enterprise. The defendant had taken all reasonably practicable steps to reduce the risk of injury, and it should not be required to take further steps as these would unreasonably compromise the output of the orchestra. Moreover the difficulty for the ROH as opposed to orchestras which perform on the concert platform is that the latter have considerably more options for spacing sections widely apart and for using risers to allow vertical separation between the sections which assist in lowering noise levels. These are impractical in the pit due to space constraints.
Although he was wearing foam earplugs (issued by the ROH) designed to attenuate noise by 28dB, the sensation from so many brass instruments playing directly behind Mr Goldscheider, 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.
He raised a complaint, and was subsequently found to have suffered high frequency hearing loss and cochlear irritation. The Court noted that it is “not uncommon” for musicians playing in the orchestra of the ROH to complain about noise levels. Different methods have been used to attempt to reduce noise levels. The difficulty for any member of the orchestra complaining about noise is that people are scared of losing their jobs. Also wearing earplugs is not popular amongst musicians. Players worry that wearing earplugs will affect the quality of their individual performance and that of the orchestra as a whole. Players have expressed concerns that earplugs prevent them from hearing their own playing and that of players around them. The inability to hear properly affects the subtleties and nuances which are fundamental to the ability of a professional musician to play at the highest standards.
The claimant attempted to return to work on a number of occasions but found it impossible. If he attempted to sit and play in the orchestra his symptoms worsened. He would feel terribly nauseous, extremely unwell from the pain in his right ear, he felt dizzy and found it difficult to walk. The last time he played in an opera was May 2013. Even practising on his own was difficult because the noise from his own instrument triggered the same symptoms.
The existence of acoustic shock as a condition was doubted by the ROH, but the judge found it to exist. The nature of acoustic shock injury is a physiological response to noise. The ear is over stimulated, it builds up a stock of toxic metabolites and from a physiological response it can move to the infliction of damage. The threshold varies for each individual. The physical response to damage to the ear can comprise deafness, pain, tinnitus or dizziness or a combination of two or more. Acoustic shock differs from acute acoustic trauma in that the latter is experienced with exposure to extremely loud sounds, over 140 dB. Similarly, acoustic shock is unrelated to noise-induced hearing loss, in which repeated exposure to sounds of an intensity greater than 85 dB causes cochlear damage.
The claimant argued that breach of the Noise Regulations were at the heart of the case, and, furthermore, that the defendant’s reliance upon “artistic value” implied that these statutory health and safety requirements must cede to the needs and wishes of the artistic output of the opera company, its managers and conductors. Such a stance was “unacceptable”, musicians are entitled to the protection of the law as is any other worker. The employees are subject to instruction, set rehearsal times and performance hours.
The Court upheld the claim. Nicola Davies J found the defendant was in breach of Regulations 5, 6, 7 and 10 of the 2005 Regulations. There was “a clear factual and causal link between the identified breaches of the Regulations and the high level of noise which ensued at the rehearsal.”
It commenced with an inadequate risk assessment, continued with a failure to undertake any monitoring of noise levels in the cramped orchestra pit with a new orchestral configuration which had been chosen for artistic reasons. Even when complaints were raised the three-hour afternoon rehearsal was commenced and completed in the absence of any live time noise monitoring
The judge found that the failure to
(a) identify the pit as a “hearing protection zone” together the absence of appropriate signage and
(b) impose more stringent requirements for the wearing of hearing protection
represented breaches of the 2005 Regulations. The defendant’s risk assessment did not include specific consideration of the level, type and duration of exposure including peak sound pressure. The judge was not satisfied that the defendant did everything that could reasonably practicably have been done to reduce the risk of noise at the rehearsal.
However laudable the aim to maintain the highest artistic standards it cannot compromise the standard of care which the ROH as an employer has to protect the health and safety of its employees when at their workplace (para 205)
The level of noise recorded during the afternoon, in particular the peak levels, would be consistent with those reported in the medical literature as causing acoustic shock.
As to the claimant’s alleged contributory negligence, the judge noted that the claimant had used his earplugs when he felt pain/discomfort or in anticipation of a loud passage. In so doing he was not acting contrary to the advice of the defendant’s managers who left it to the individual musicians to judge for themselves when to use the protection. Had the defendant complied with Regulation 7(3) and made it clear that wearing hearing protection was mandatory throughout the rehearsal this would have reduced his risk of exposure to high noise levels. It did not. That was not a failure for which the claimant can be held liable in the absence of appropriate instruction.