Article: Goldscheider v The Royal Opera House – A Sound Judgment?
It might be said that noise is to music what words are to poetry: the latter cannot live without the former. There is a notable and crucial difference, however, in that unacceptable and offensive words are unlikely to cause immediate and significant physical damage to one’s health. Sticks and stones and all that.
It is well documented that exposure to noise over certain levels can cause significant and sometimes irreparable hearing damage. For a musician whose livelihood depends on their ability to hear this is devastating. One such case is that of Christopher Goldscheider v The Royal Opera House Covent Garden Foundation [2018] EWHC 687 (QB), where the High Court ruled that the Royal Opera House (“ROH”) was responsible for “acoustic shock” suffered by Mr Goldscheider, a viola player in its orchestra, during a rehearsal in 2012 of Wagner’s Die Walkure, one of the Ring operas. The ROH is considering whether to appeal the decision.
Background
The Ring operas require a huge orchestra including large French horn and brass sections together with two sets of timpani. It is a challenge at the best of times to fit the players into a confined orchestra pit with no room for expansion.
In standard orchestral configuration, the horns and the brass are at opposite sides of the orchestra, however, after consulting the Music Director, Antonio Pappano, it was decided for the ROH’s 2012 production to try seating the horns and brass together. As the timpani play for much of the time with the brass, they were seated in the same area behind the viola section and with the principal trumpet’s bell only three feet away from Mr Goldscheider.
Mr Goldscheider wore custom made ear plugs provided by the ROH that reduced his noise exposure by 9dB. He found these insufficient, so he switched to ear plugs generally available and again provided by the ROH which reduced his noise exposure by 28dB, using them in those parts of the rehearsal when he felt he needed them. He said he found the noise from the “wall of sound” generated by the horn and brass sections overwhelming, excruciatingly loud and painful. He began to feel weird and, after the rehearsal, became increasingly unwell and dizzy. His GP diagnosed acoustic trauma and signed him off work. Further investigations confirmed that Mr Goldscheider had high frequency hearing loss and that he had suffered acoustic shock as a result of exposure to sudden, unexpected and high-pressure noise.
Mr Goldscheider did not return to the ROH and is now unable to work as a professional viola player.
The Claim and Defence
Mr Goldscheider based his claim on the Control of Noise at Work Regulations 2005 (“the Regulations”), which are designed to limit noise exposure and ultimately protect hearing and health in the workplace.
The Regulations, with which Mr Goldscheider said the ROH had failed to comply, impose limits on noise exposure, the calculation of which is complex and involves measurements being taken and averaged over a period of time, with consideration given to peak sound pressure exposure. Risk assessments must be carried out, including in relation to the levels and duration of noise and the effects of exposure. Measures must then be put in place to eliminate or control noise exposure and hearing protection is to be provided if the exposure reaches certain trigger levels. Health surveillance must also be carried out. In addition, information and training must be provided.
The ROH denied that it was in breach of the Regulations, stating it had done all that was reasonably practicable to reduce noise exposure to a low level whilst considering the technical and aesthetic demands necessary by the nature of its work as a performing company.
The ROH also denied medical causation as its expert medical advice was that (1) acoustic shock could not cause long term hearing damage; and (2) hearing damage of the type complained of by Mr Goldscheider could not be caused by an isolated incident of exposure to live music.
The Regulations in the Music Sector
It is easy to understand the need for protecting against noise exposure for those who work in, for example, factories or construction sites, but applying the Regulations to the music sector, where the creation and production of noise is the very purpose of its activities, may be less easy to comprehend.
There was a considerable amount of discussion in the music sector before the Regulations came into force as to how they would or could be implemented. Orchestras and opera companies are by their very nature noisy and, as the judgment makes clear, noise is not the by-product (as it would be in say, a car factory), it is the product.
Virtually all organisations and musicians understood that compliance with the Regulations would be difficult in an environment where the ability of the performer to hear both their own sound and that being produced by their colleagues is crucial. This was recognised at the outset by the ROH which, along with many other organisations, implemented a number of procedures to minimise the risks to its employees.
The measures put in place by the ROH included carrying out risk assessments in relation to noise exposure, measuring the sound levels in the pit, using acoustic shields and baffling to dampen and deflect sound, re-configuring the pit lay-out, carrying out audiometric testing of all players, providing custom made personal protective equipment (“PPE”) in the form of ear plugs and providing training.
The Judgment
Despite the measures put in place by the ROH to protect its employees from hearing damage, the Judge found, amongst other things, that it did not carry out an adequate risk assessment relating to noise in rehearsals and did not take measures to reduce exposure to it.
Having heard the “honest and earnest evidence” given on behalf of the ROH, the Judge acknowledged that the ROH wished to maintain the highest artistic standards and reputation. Nevertheless she stated:
“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.”
Furthermore, and of great significance to the classical music sector, the Judge held that:
“…the ROH did not inform [Mr Goldscheider], nor it would appear other orchestra players of the mandatory requirement to wear hearing protection when the noise was likely be above the upper [levels permitted by the Regulations]. It is not enough to leave the issue for the musicians to judge for themselves, they should have been informed of the strict requirement and the need for it…”
The Judge found that the noise levels in the rehearsal of Die Walkure were within the range identified as causing acoustic shock and that Mr Goldscheider’s exposure to the noise produced by the principal trumpet led to the injury he sustained and consequential symptoms, from which he continues to suffer.
Practical considerations arising out of the Judgment
If the ROH, with all its resources, expertise and measures in place to meet (as it thought it had) its obligations was unable to do so, performing organisations of all types and sizes will be wondering what they can do to ensure they are compliant with the Regulations.
Anything that interferes with the ability to hear the natural sound they are making causes considerable difficulties for a performer and can affect every aspect of the sound produced. Measures designed to limit exposure can be ineffective: screens absorbing noise may leave musicians unable to judge their own dynamic and playing louder to compensate; acoustic shields take up much-needed space and also reflect the sound back to the player behind it; ear plugs distort the sound heard and make it extremely difficult to judge the sound being produced.
The ROH, following HSE guidance in 2008 (in its publication Sound Advice: Control of Noise at Work in Music and Entertainment), encouraged individuals to wear PPE hearing protection when they considered they needed it rather than making it compulsory. The Court’s ruling means that those musicians who are protected by the Regulations do not have the option of self-regulating their exposure to noise when risk assessments identify an issue; they must be informed of the requirement to wear hearing protection and performers must do so.
How the ruling is going to work in practice in relation to ensuring PPE is worn when necessary is not easy to see. The ROH pointed out that it is virtually impossible to police individuals during a rehearsal or performance to ensure they are wearing hearing protection. In this instance, Mr Goldscheider had PPE available to him and used it when he thought he needed it and it was found to be insufficient.
The most effective way to limit noise exposure is to increase the space in which it is produced. In a fixed orchestral pit in the middle of a theatre, this may be unachievable technically and may require reducing auditorium seating and consequential (and essential) box office takings, not to mention the costs involved and closure time for the works to be carried out. For most organisations, including the ROH, these are simply not viable options. However, the Judgment suggests that what is “reasonably practicable” as far as compliance with the Regulations is concerned is more than what is convenient or financially desirable.
There are few cases where one has sympathy for both parties in equal measure, but Goldscheider is one. For Mr Goldscheider, the damage to his hearing has destroyed his career. For the ROH, it was doing all that it thought it could reasonably do to limit the noise exposure to its employees whilst maintaining the artistic and musical standards for which it is well known. Unfortunately for the ROH, the Court found that was not enough.
29 March 2018
Ellen Gallagher is a media and entertainment litigation lawyer at Russells and previously worked at English National Opera and Opera North. She is also a violinist.