As Goldscheider Wins Judgment Against Royal Opera House

MEDIA RELEASE

High Note for Protection of Musicians

as Goldscheider wins Judgment against Royal Opera House

28 March 2018

In a 125-page Judgment handed down on 28/03/2018 at the High Court, London by the Honourable Mrs Justice Nicola Davies DBE, the Royal Opera House has been found responsible 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 that the Court has explored the Music Industry’s legal obligations towards the hearing of Musicians, and the first time that Acoustic Shock has been recognised as a compensatable condition by the Court.

The decision leaves insurers for the Royal Opera House responsible for a £750,000.00 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 probable claims against them by other musicians.

Headlines

Chris Goldscheider is aged 45; a professional musician, began playing the violin at the age of 5 and the viola from about 21. He studied in Prague and the UK. In 2002 he joined the viola section of the orchestra of the ROH as number eleven viola, he was promoted to number six. He played on stage with Kylie Minogue, and the Three Tenors. Mr Goldscheider remained at the ROH until July 2014. He was unable to continue working because of the injuries he suffered at work in September 2012.

Goldscheider’s claim was for damages for personal injury, loss and damage sustained during the course of his employment at the defendant’s Royal Opera House (“ROH”) in Covent Garden, London, on Saturday 1 September 2012. During rehearsal that afternoon he was seated directly in front of the brass section of the orchestra during a rehearsal of Wagner’s Ring Cycle. During that rehearsal, the noise levels to which he was exposed were so high that his hearing was immediately and irreversibly damaged causing catastrophic damage to his professional and personal life.

The Law

The Control of Noise at Work Regulations 2005 set out what employers must do to protect the hearing of their employees. These duties include undertaking effective risk assessments to identify noise levels at work, where those levels exceed 80 decibels to reduce noise at its source, provide suitable hearing protection (as a last resort) and ensure that employees understand and are properly trained about noise risk and the need to wear protection properly.

After a careful analysis of the Royal Opera House’s practices against the Noise Regulations, Mrs Justice Davies found them to have failed to comply, and at Paragraph 219 summarised the position as follows,

“In my view there is 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. All of this was done against a background of a failure by the management at the ROH to properly appreciate or act upon the mandatory requirements of Regulation 7(3) of the 2005 Regulations when it knew the noise would exceed the upper EAV.”

Acoustic Shock

Recognition of the concept of acoustic shock is contained in what was described as the foremost ENT textbook in the United Kingdom: Scott-Brown’s Otorhinolaryngology, Head and Neck Surgery. In the 2008 current edition, part 19, “The ear, hearing and balance”, it is stated:

“The problem of acoustic shock is very different and is thought to be more of an acute stress reaction. Objective hearing loss is rarely a feature, but high levels of psychological stress are common.”

It summarises the symptoms found in acoustic shock. The common symptoms are identified as otalgia, tinnitus, hyperacusis, dizziness, headaches, sleep disturbance and poor concentration. Less frequent are neck pain, shoulder pain and panic attacks.

The Royal Opera House argued that Acoustic Shock does not exist, and that if it did Mr Goldscheider did not have it. Their case was that he had developed an entirely natural hearing problem at exactly the same time as the super loud high intensity noise burst behind his right ear.

Mrs Justice Davies took a different view, stating that, “I regard the Defendant’s contention that Meniere’s Disease developed at the rehearsal as stretching the concept of coincidence too far….”(Para 224).

She referred to the absence of former precedents on Acoustic Shock as being indicative of emerging knowledge, and no basis for failing to recognise its existence. She went on to provide a useful two-page Appendix to the Judgment outlining the sources which she found useful understanding medical opinion on subject.

Impact of the judgment

Speaking of the impact of the decision, Chris Fry, from Fry Law who has acted for Mr Goldscheider since 2012, had some sound advice:

“This case has significance and will send shockwaves across the Music Business. The Music Business has considered itself exempt from the same regulatory requirements as all other sectors because of the artistic nature of its output. This in our view has always been a dismissive view from an industry which creates and sells ‘noise’ as a product.

This case calls out the Elephant in the Room. Musicians with hearing loss should take heart from this decision and must no longer suffer in silence. I have heard evidence that too often musicians would feel intimidated into keeping quiet and that noise damage was an occupational hazard. But, as Mrs Justice Davies herself says [Para 196], “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.”

Useful Facts

Source: “Effects of Noise on Classical Musicians”, Finnish Institute of Occupational Health, Tampere University Hospital, Finland, Magazine 8, European Agency for Safety and Health at Work

Classical musicians are at extreme risk for hearing loss. A Finnish study among classical musicians found that 15 percent of the musicians in the study suffered from permanent tinnitus, in comparison to 2 percent among the general population. Temporary tinnitus affected another 41 percent of the musicians in group rehearsals and 18 percent of those in individual rehearsals.

It is estimated that 15 percent of the general population experiencetinnitus temporarily.

As many as 43 percent of the classical musicians suffered from hyperacusis, a hearing disorder characterized by reduced tolerance to specific sound levels not normally regarded as loud for people with normal hearing.

Hearing loss causes stress

83 percent of the musicians found their job stressful. Those suffering from hearing damage were three times more likely to suffer from stress according to the study. Suffering from tinnitus increased the stress prevalence five-fold, and those with hyperacusis were nine times more likely to suffer from stress.

According to ‘Musicians UK’

“The unfortunate circumstances surrounding Chris’ tragic hearing loss reflect a growing number of hearing related issues as highlighted in our 2015 hearing survey where 59.5% of musicians said they had suffered hearing loss and 78% said working as a musician was a contributor to their hearing loss.”

Quotes from the Judgment

High frequency sound is more directional than low frequency sound, the intensity of the noise will reduce over a distance. Noise being funnelled from a brass instrument would be highly directional. The bell of a trumpet being relatively close to the head of another player would produce relatively high frequency and directional noise (Para 105)

A hand-held noise meter would give a rapid indication of noise levels (Para 107)

Breach of Noise Regulations

The defendant has advanced no evidence that artistic values of productions of its operas,specifically those in the Ring Cycle, would in 2012 or now be reduced by steps taken to eliminate or reduce noise exposure from that created by the configuration of musicians in amongst whom the claimant was rehearsing on Saturday 1 September.

There is no good evidence upon which to find that Mr Downes, having made the assumption that noise levels would exceed the prescribed upper EAV, specifically considered the level, type and duration of exposure to noise nor the nature and extent of risk which the same created. Such consideration would have better informed his decision as to control measures and any reasonably practicable steps to be taken to eliminate/reduce the risk. This failure is the more acute… (Para 193)

There is nothing in this risk assessment nor in the defendant’s evidence to the Court which provides any basis for a finding that those responsible for assessing risk and control measures during the performance or these rehearsals gave any or any proper consideration to the provisions of Regulations 7(3)(a) and (b). (Para 196)

I find that the failure to: (a) identify the area as a Hearing Protection Zone togetherwith the absence of appropriate signage; and (b) impose more stringent requirements for the wearing of hearing protection does represent a breach of Regulation 5(1) in that the risk assessment failed to fully identify the measures which needed to be taken to meet requirements of the 2005 Regulations. (Para 197)

I find there was a breach of Regulation 5(3)(a) in that the risk assessment did not include specific consideration of the level, type and duration of exposure including peak sound pressure. Regulation 5(4) requires the assessment to be regularly reviewed and if there is reason to suspect that it is no longer valid changes should be made. No amendment was made to the original risk assessment when changes were made to the orchestral configuration following the claimant’s incident. This represents a breach of Regulation 5(4) but one which is not causative of the events of 1 September. However, it is reflective of the care with which this document was completed, as is the fact that Mr Downes did not sign or date the assessment nor identify himself as the “Responsible Manager” as required. Mr Downes’ explanation for his failure to date and sign was that this was an electronic document. That will not do. In my view, it is a reflection of the care which he brought to the task of completing this risk assessment (Para 198)

The identified breaches of Regulation 5 are such as to lead me to conclude that the risk assessment prepared by Mr Downesfor the production of Die Walküre 2012 was not a suitable or sufficient assessment of risk so as to comply with Regulation 5 of the 2005 Regulations. (Para 199).

I am not satisfied that the defendant did everything that could reasonably practicably have been done to reduce the risk of noise at the rehearsal on the afternoon of 1 September 2012. (Para 202).

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 Regulations recognise no distinction as between a factory and an opera house. (Para 206). Ear protection must be worn. I find that the management of the ROH had not focused properly or at all on these provisions, the instruction given to its employees did not reflect the stringent requirements of Regulation 7(3)(b). (Para 207)

If management does not fully appreciate or take steps to implement the requirements of the Regulations, it cannot fully or properly inform and instruct its musicians as to the imperative nature of the need to wear the protection within what should havebeen a designated area. This is where the defendant failed. (Para 209)

Failure to carry out a sufficient risk assessment, its failure to immediately live time monitor noise levels in the area of the violas at the afternoon rehearsal, its failure to observe and implement the requirements of Regulation 7(3)(a) to (c) which impacted upon the information/instruction given to its employees (Para 213).

Acoustic Shock

Acoustic shock is the mechanism of injury from which the symptoms flow. The injury involves the inner-ear and comprises cellular and/or biochemical changes. There has to be an acoustic incident, the sudden onset of loud noise for which the person is unprepared. This is followed by an acoustic startle, a vestigial innate response to the threat of potential injury. 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. (Para 110).

“Noises that generate acoustic shock do not have an intensity and duration profile that would be regarded as dangerous to the auditory system within the framework of existing workplace legislation. In this respect, it is important to distinguish acoustic shock from acute acoustic trauma that 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.”

In his oral evidence he relied upon the Milhinch paper as providing a range of 82 dB to 120 dB sufficient to cause acoustic shock. (Para 116)

The description of acoustic shock, namely an index exposure to any sound or cluster of sounds of short duration but at a high intensity reflects and is consistent with the evidence of the claimant as to the playing of the Principal trumpet at or close to his right ear. The sound or sounds would have been unexpected because the claimant had only his own musical part in front of him, the trumpet player had his own part. Audiometry following the incident demonstrates changes in the right ear, not reflected in the left ear. I regard the defendant’s contention that Meniere’s disease developed at the rehearsal as stretching the concept of coincidence too far by reason of: (i) the nature of the index exposure and (ii) the fact that the person sitting next to the claimant described the loud noise of the trumpets and the similar physical effect upon her. 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. (Para 224).

“The problem of acoustic shock is very different and is thought to be more of an acute stress reaction. Objective hearing loss is rarely a feature but high levels of psychological stress are common.”

The Legal Team

Solicitors: Chris Fry. Founder & Principal of Fry Law, assisted by Sami French.

Barristers: Theo Huckle QC, Dought Street Chambers.

Jonathan Clarke, Old Square Chambers.

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NOTES TO EDITORS

Previous coverage of the case

Fry Law specialises in Equality & Human Rights work for people treated badly by service providers because of disability, age, race, gender, sexual orientation and religious beliefs. They also undertake workers’ compensation work predominantly in Noise Induced Hearing Loss (NIHL) for people whose health and hearing has been affected at work.

Their lawyers are responsible for 6 reported authorities in the Court of Appeal, and two in the Supreme Court making Fry Law a Northern-based National Powerhouse in this important work.

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