No distinction between an opera house and a factory.
Judgment was handed down today following an eight day High Court trial in this case, which is likely to have major implications for the performance of live music throughout the UK and is a case without precedent.
Mr Goldscheider was a viola player in the Orchestra of the Royal Opera House. He alleged that whilst participating in a rehearsal for a Wagner opera in September 2012, he suffered from “acoustic shock” in the right ear despite wearing earplugs with 25dB attenuation provided by his employer.
Hearing damage claims are common from heavy industry and those for acoustic shock are more commonly seen in call centre operators. The music industry has been treated somewhat differently with the implementation of the 2005 Control of Noise at Work Regulations (which no longer give rise to civil liability after 1 October 2013 and the Enterprise Regulatory Reform Act (2013)) being deferred by two years, as rather than the sound being an unwanted by-product of a process, music is the product itself and the quality of that product is central, hence, the challenges faced by the music industry in maintaining the quality of the product whilst protecting the health and wellbeing of the musicians.
The Royal Opera House was well aware of the risks posed by exposure to performance sound, having worked closely with the HSE to produce “Sound Advice” the guidance for control of noise at work in the music and entertainment sector. It has experimented with numerous sound absorption and reflection products over the years, but by far the most effective protection was for the musicians to wear individual earplugs whenever the music was loud and they did not need to hear the subtlety and nuance of the sound being produced. Mr Goldscheider was familiar with the opera being rehearsed and had marked his score to show when there were loud sections so that he ensured he was wearing his hearing protection.
The protection provided and worn reduced his exposure to below the level at which the defendant believed injury was reasonably foreseeable. Despite this, it was suggested that further measures should have been implemented such as making the orchestra pit a compulsory hearing protection zone at all times, eliminating the noise at source (the instruments themselves), expanding the grade 1 orchestra pit (at a cost of £50million loss of revenue for the benefit of less than a single decibel reduction in sound) or to move the orchestra out of the Royal Opera House completely despite the key duties under the 2005 Regulations being qualified by the test of reasonable practicability.
It was also the claimant’s case that measurement of sound levels should have been undertaken when completing the risk assessment and during the rehearsals the day before the alleged injury occurred, despite the nature of rehearsals being such that a typical noise level could never be established.
The Compensation Act 2006 was also relied upon by the defence, which allows the court to take into account the demands of a desirable activity when considering the level of the standard of care required to be taken, and the effect on artistic input that would result in, for example, fewer musicians playing at a lower level, and having to wear hearing protection 100 per cent of the time. A finding for the claimant, if allowed to stand, is likely to have significant consequences for the music industry (in particular orchestras) nationwide, and their ability to employ musicians and produce music true to the original score, and so this judgment has been keenly awaited by the UK music and entertainment industry.
Mrs Justice Davies found it should have been compulsory for all of the orchestra to wear protection all of the time during rehearsals and performances. This was despite it being unanimously accepted by all witnesses, including the Claimant, that it was not reasonably practicable to wear hearing protection all of the time because it makes it impossible to hear the other musicians and blend with their music. She also found there could be no interpretation of this by the professional musicians themselves, and that as some of the parts of rehearsal and performance would exceed the Exposure Action Value without protection the orchestra pit had to be a compulsory hearing protection area all of the time. In this regard there was no distinction between an opera house and a factory.
The court rejected the defendant’s contention that the correct wearing of 25dB attenuating plugs by the claimant during the loud sections, which reduced his exposure to 78-80dB(A) Lep,d, with peaks of around 112dB(C), well below the Lower Exposure Action Values under the demanding 2005 regulations, was sufficient to discharge their duty to the claimant. As the defendant relied on the hearing protection to protect the musicians, its risk assessment was deemed inadequate despite it assuming the worst case scenario 2005 regulation values would be exceeded.
In summary, the Judge was not satisfied the defendant did everything reasonably practicable to reduce the risk of noise at the index time.
The court, whilst accepting that acoustic shock is a relatively new phenomenon, and until now primarily associated with call centre workers, didn’t regard the absence of reported cases for musicians determinative, and accepted the claimant’s evidence that exposure to noise levels as low as 82dB could be sufficient to cause it. It found that, despite the level of protection afforded by the protection worn, the only possible cause of the claimants symptoms was the overwhelming level of sound experienced in the rehearsal that day, and had he been instructed to wear his plugs constantly, his risk of exposure to high levels of noise would have reduced.
As it stands, this judgment will have significant consequences for the live music sector in this country. In effect it brutally hammers the square peg of the 2005 regulations into the round hole of performance sound production, without any allowance being made for artistic standards, reasonable practicability, and a collaborative approach with the professional musicians, regardless of whether wearing appropriate Personal Protective Equipment (PPE) for sufficient periods is enough to reduce exposure below the levels set out in the regulations.
The acceptance that acoustic shock is a real issue for musicians, and may occur at levels of exposure as low as 82dB, (a level half as loud as a noisy restaurant or heavy traffic), poses considerably more questions than it answers. Employers who have directed their health and safety efforts to protecting employees from long term exposure to excessive noise and the possibility of noise induced hearing loss, will now have to consider whether instantaneous exposure below the levels in the regulations could result in foreseeable acoustic injury to their employees.
We are disappointed by this judgment and its implications. We are currently giving it careful consideration before deciding whether we have realistic prospects of successfully appealing the findings.