What are you looking for?

16 May 2018 | Comment | Article by Andrew Davies

Musicians should no longer suffer in silence following landmark case

The recent landmark case of Christopher Goldscheider v The Royal Opera House Covent Garden Foundation [2018] EWHC 687 (QB) has highlighted the real risk that excessively loud music can cause hearing damage.

The claimant in this case was a professional viola player employed in the orchestra at the Royal Opera House (ROH). This is the first time the court has considered acoustic shock in the music industry. It was alleged that the claimant had suffered acoustic shock during rehearsal on the afternoon of 1 September 2012. The claimant was seated directly in front of the brass section of the orchestra within the famous orchestra pit. The claimant was exposed to an average noise level of 91.8dB and a peak sound level of 130.8dB, which is roughly the equivalent of a jet aircraft taking off*. The noise from just a single trumpet can output sound between 88dB and 108dB with a peak of 113dB**. To put this into context, since 6 April 2006 when The Control of Noise at Work Regulations 2005 came into force within the entertainment industry, employers are required to provide information, training and make hearing protection available from a noise level of 80dB and above***.

The major long-term effect on the claimant from his noise exposure was hyperacusis. This condition is not as well-known as hearing loss and tinnitus (ringing/buzzing in the ears) but can also have a dramatic effect on an individual’s life. Hyperacusis is an increased sensitivity or intolerance to everyday sounds; when an individual hears noise they may feel uncomfortable, experience pain or distress****.

Despite the claimant having been issued with ear plugs; they were not enforced. It was left to the musicians, as professionals, to determine when they felt it necessary to utilise the ear protection. This was not accepted by the Judge who found that the defendant had breached their duties under the Control of Noise at Work Regulations 2005 and awarded damages to the claimant.

Until now it appears that artistic value has been placed above health and safety. This case could have huge implications for the music industry and its obligations towards musicians.

The case is somewhat unique in that the claimant could pinpoint a specific event that caused his hearing difficulties. This is not always the case. Symptoms of hearing loss are often progressive and not instigated by a one off event. Exposure over a number of years can lead to hearing loss, tinnitus and/or hyperacusus.

How can this be avoided?

Employers should be undertaking risk assessments to identify the employees at risk of excessive noise exposure and take the necessary action. Hearing protection is of course an important consideration when dealing with excessive noise. However, attempts should be made to reduce the noise at source.

Employers should be taking steps to ensure that musicians play at lower volumes during rehearsals and impose regular breaks to reduce the overall exposure. Modifications could be made to a venue, for example the installation of acoustic panelling. Raising the stage for a certain group of musicians may allow sound to be projected over the heads of other performers, rather than directly at them.

If employees are at risk of being exposed to excessive noise the employer should undertake a risk assessment, suitable hearing protection should be made available, training provided and attempts made to reduce the level of noise e.g. the use of acoustic screens. A balance has to be struck between the enjoyment of the arts and ensuring the health and safety of those involved.

There is often a perception by the general public that those suffering with hearing loss caused by exposure to noise always work in loud factories or with noisy tools. Many would be surprised to learn that the noise from an orchestral performance can actually be even louder. With specialist equipment available to protect professional musicians from the effects of excessive noise, there is no reason why they shouldn’t expect to receive the same level of protection as any other employee.

*IAC Acoustics – Comparative examples of noise levels – http://www.industrialnoisecontrol.com/comparative-noise-examples.htm

**Representative noise levels from Sound Advice: Control at Noise at Work in Music and Entertainment – Page 84

***The Control of Noise at Work Regulations 2005 – http://www.legislation.gov.uk/uksi/2005/1643/contents/made

****NHS Choices – https://www.nhs.uk/conditions/hyperacusis/

Author bio

Andrew Davies specialises in funding, budgeting and legal costs in high value complex and multi-party litigation both in the UK and internationally. He also specialises in law relating to medical, surgical and clinical practice. Andrew is now part of the Senior Management Team overseeing multi-party group actions and has considerable expertise in legal costs on which he takes the lead.

Contact one of our experts

Fill in the form and one of our experts will get in touch with you shortly.