In an unprecedented case, a musician has successfully claimed damages from his employers in respect of irreversible hearing loss, under the Control of Noise at Work Regulations 2005 (the 'Regulations'). 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) in Covent Garden. 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 Mr Goldscheider 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.
The ROH were aware of their obligations to employees in respect of noise risks. Mr Goldscheider had been provided with custom-made earplugs, fitted by a Harley Street specialist, with 9 decibel filters. 28 decibel filter earplugs were also available, for use when needed. Musicians were provided with regular training about noise risk and how best to minimise it, and underwent biannual testing for any hearing problems. The importance of noise protection was emphasised, although it was left up to individual musicians to decide as and when they may need to use earplugs. This acknowledged the fact that each individual has differing tolerances to noise and that their ability to play well could be compromised by earplugs. Various means of noise reduction were considered by ROH, including increasing the pit space. However, this would have resulted in costs of £5m and an annual £2m loss in revenue resulting from removal of two rows of seats and was therefore felt to be disproportionate. 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.
The ROH's case
In its defence the ROH emphasised that it had taken all reasonably practicable measures to minimise noise risk. It 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, Grade A listed auditorium. As the judgment notes, 'the noise produced by a professional orchestra is not a by-product of its activities, it is the product'.
Nonetheless, the judge held that the ROH had breached its obligations under the Regulations. Mr Goldscheider had suffered 'acoustic shock' – the first time this condition has been recognised by the courts – caused by noise levels during rehearsals. She held that the risk assessments carried out were insufficient, failing to consider the level, type and duration of noise exposure. She further held 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. Allegations of contributory negligence on Mr Goldscheider’s part, due to his failure to leave the rehearsal despite feeling unwell, were rejected. The ROH is considering whether to appeal.
This case turns very much on its own facts and it is important to note that the Regulations no longer give rise to civil liability. However, the judgment remains a landmark decision, the first judicial recognition of 'acoustic shock'. The express refusal to distinguish between an orchestra - whose very business is the production of noise - from a work environment in which noise is a by-product, will no doubt cause significant concern to live entertainment venues across the UK. The decision also appears to shift increasing responsibility to employers, asking that hearing protection be made mandatory without taking into account individual musicians' own discretion. Since the Regulations no longer give rise to liability, any future case would be advanced on general negligence principles. Nonetheless, employers will be aware that in comparable circumstances there is a risk of HSE involvement and possibly prosecution.