A landmark ruling of the High Court has found that The Royal Opera House breached its health and safety duties, resulting in a viola player suffering acoustic shock during a rehearsal.
Although this case was a civil action for damages, and indeed the first to compensate for acoustic shock, it looked at the duty on employers under The Control of Noise at Work Regulations 2005. The ruling is likely to have an impact on how criminal health and safety regulators approach this issue not only in the music and entertainment industry but across other industries. It also serves as a reminder to all duty holders to consider the approach they take to managing the risks presented by noise and in particular single incidents of very loud noise at work.
What is acoustic shock and when can it occur?
“An adverse reaction to a sudden unexpected noise (an acoustic incident).” Oxford Concise Medical Dictionary
“…incidents involving exposure to short duration, high frequency, high intensity sounds through a telephone headset….”. HSE website
It is clear from these definitions that in workplace risk terms, the Health and Safety Executive (HSE) take a much narrower approach to the definition of acoustic shock.
The HSE’s enforcement action appears to reflect that and following a review of the HSE’s prosecution database we could not find any criminal cases prosecuted for acoustic shock. However, there have been a number of civil claims for acoustic shock suffered following a sudden and loud noise transmitted through headphones or a telephone.
In this case it was found that Mr Goldscheider suffered acoustic shock not as a result of a single exposure to noise through a headset, but over the course of an afternoon rehearsal on 1 September 2012. The rehearsal took place in the orchestra pit at The Royal Opera House, which was known to present challenges in terms of noise due to its layout and confined nature and Mr Goldscheider was seated directly in front of the brass section. During the rehearsal, the noise levels exceeded 130 decibels and Mr Goldscheider’s hearing was irreversibly damaged. He reported life changing symptoms including tinnitus, hyperacusis and dizziness and that normal sounds become painful.
Is the duty to control noise consistent across industries?
In this case the Royal Opera House sought to differentiate itself from other industries and therefore, the level of protection it could afford those affected. It argued this was because noise is the product rather than the by-product of its work. It also suggested that the artistic value of the output meant that some hearing damage to its players was inevitable and justifiable.
The Control of Noise at Work Regulations 2005 have the stated aim of “protecting persons against risk to their health and safety arising from exposure to noise at work” and requires employers to undertake health surveillance and provide information, instruction and training to its employees. There are also restrictions in relation to daily personal noise exposure levels or the peak sound exposures. On the coming into force of the Regulations in 2006, it was recognised that they presented a challenge for the music and entertainment industry and a two year lead in period to reach compliance was permitted.
The Royal Opera House had taken some steps to try and mitigate the risks arising from noise. It had provided Mr Goldscheider with two types of ear plugs; one to reduce sound by 28 decibels, the other by 9 decibels. However, it appears that there was no clear guidance on when they should be used and orchestra members adopted different approaches, some keeping them in throughout whole performances, others using them for particularly noisy passages. Mr Goldscheider adopted the latter approach but had no way of assessing whether the ear plugs were effective; they also presented difficulties in terms of hearing other players and his own instrument.
Perhaps not unsurprisingly, the Judge, Mrs Justice Davies, entirely disagreed with the position adopted by The Royal Opera House that it should be judged differently given its position. The Judge ruled “the reliance upon artistic value implies that 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 is unacceptable. Musicians are entitled to the protection of the law, as is any other worker.”
So what now?
The question has to be asked whether this case should serve as notice to duty holders that acoustic shock can now occur in circumstances other than by a single incident of loud noise through a telephone or headset. Furthermore, whether it will change the approach regulators take to how it expects to see such risks controlled by duty holders.
Could we also now see criminal prosecutions for acoustic shock beyond situations where it is experienced through a telephone headset?
With this background, it is important that duty holders ask themselves:
- Do we understand the circumstances where both a single incident and prolonged exposure might result in significant and damaging exposure to noise?
- Do we know of any situations arising from our work where a single incident of noise could cause acoustic shock, even if not through a telephone headset?
- Have these risks been subject to a risk assessment?
- What steps can we take to guard against the risk of noise and acoustic shock and can we justify the steps taken as being reasonable?
- Should the approach taken to health surveillance for hearing change?
The Judgement of the case can be found by clicking here https://www.judiciary.gov.uk/wp-content/uploads/2018/03/goldscheider-v-roh-judgmentL.pdf. We understand that The Royal Opera House are considering appealing the ruling.