In 2018, inan unprecedented High Court judgment, a musician successfully claimed damages from his employers in respect of irreversible hearing loss, under the Control of Noise at Work Regulations 2005 (the “Regulations”). In a decision which caused concern across the music and live entertainment industry the judgment made clear that an orchestra cannot be distinguished, as a work environment, from a factory when considering obligations to protect employees from noise risk, notwithstanding the fact that noise is “not a by-product of its activities, it is the product”.
Chris Goldscheider was a viola player at the Royal Opera House (ROH). During rehearsals of Wagner’s Ring Cycle in September 2012 he was seated directly in front of an 18-strong brass section. The orchestra pit was cramped and the noise produced by the musicians behind him at times exceeded 135 decibels. During and immediately after the rehearsal he suffered symptoms including dizziness, tinnitus and hearing loss. It was noted that the injury had “decimated” his professional life.
ROH were aware of their obligations to employees in respect of noise risk. Mr Goldscheider had been provided with custom-made earplugs, with 9 decibel filters. 28 decibel filters were also available, for use when needed. Musicians were provided with regular training about noise risk and underwent biannual testing for any hearing problems. It was left up to individuals to decide as and when they may need to use earplugs, acknowledging the fact that each individual has differing tolerances to noise and that the ability to play well could be compromised by earplugs. Various means of noise reduction were considered by ROH; the difficulty for the orchestra was achieving a balance between noise protection and producing high quality performances.
Mr Goldscheider alleged that ROH breached its duties under the Regulations, including failures to eliminate or reduce as far as reasonably practicable the risks posed by noise exposure; to ensure that he was provided with sufficient information and that hearing protection was properly used; insufficient risk assessment; and a failure to designate the pit as a Hearing Protection Zone. In its defence, ROH relied on the Compensation Act 2006 noting that further measures to reduce the risk may have prevented or hindered a “desirable activity” – the production of music to a very high standard in an historic auditorium.
The High Court judgment
At first instance it was held that ROH had breached its obligations under the Regulations. The Judge found that the risk assessments carried out were insufficient, that the pit should have been designated a Hearing Protection Zone, and that further steps should have been taken to ensure that the use of hearing protection was mandatory.
ROH appealed the decision on the basis that it had taken all reasonably practicable steps to reduce the risk of noise exposure, contending that enforcing the use of mandatory hearing protection would not be a reasonably practicable step. The judgment had caused concern in the industry, as evidenced by the fact that the Association of British Orchestras, the Society of London Theatres and the UK Theatre Association all obtained permission to intervene in the appeal in support of ROH. The interveners expressed concern about the “likely wider ramifications” of the decision, suggesting that it would curtail “all music making in the UK – concerts, theatres, schools, the lot”.
The first instance decision was upheld, albeit for slightly different reasons. In particular the Court of Appeal found that measures taken shortly after the injury was suffered by Mr Goldscheider, which did reduce noise levels, undermined ROH’s case that it could not have taken any further reasonably practicable measures to prevent the injury. It was noted that “alterations made by defendants after a workplace accident do not necessarily demonstrate liability retrospectively, but they do make it very difficult for the defendant to prove that all reasonably practicable steps had already been taken”. However, in a move which will give some reassurance to the industry, the Court of Appeal accepted that it was not reasonably practicable to require musicians to wear hearing protection at all times. ROH had argued that do so would mean that musicians could not hear sufficiently clearly during quieter sections and would be impossible to enforce.
Although the decision that the Regulations did not impose a duty on ROH to enforce mandatory hearing protection will reassure some, the fundamental point remains that an orchestra cannot distinguish itself, as a work environment, from a factory when considering obligations to protect employees from noise risk – the Compensation Act 2006 did not assist ROH in this respect. The Court rejected the interveners’ concerns about the “cataclysmic” effect on the industry, noting that most music venues are not subject to the particular problems and limitations of space which caused issues for ROH.
As we noted in our comments on the first instance judgment, the Regulations no longer give rise to civil liability and any future case would be advanced on general negligence principles. Nonetheless, employers should be aware of the potential ramifications. Given the potential impact on a defence of workplace changes in the immediate aftermath of an accident, it is always advisable to obtain expert legal advice as soon as possible after any serious incident.