At Cirrus Research, we have been following the case of a viola player who suffered a life-changing hearing injury that left him unable to work or even listen to his own son play, after he won a landmark High Court judgement against the Royal Opera House (ROH), arguing that his hearing was irreparably damaged during the horn section of a performance of Wagner’s Ring Cycle.
It’s the first time in the UK a judge has examined, in detail, the music industry’s legal obligations towards musicians’ hearing, and could now set a precedent that could be seismic for the music and entertainment industry. To start with, it is the first time that ‘acoustic shock’ has been recognised as a condition that can be compensated by a court. Not surprisingly and in what some could consider an understatement, the ROH said it was “disappointed” by the judgement; an appeal to the Court of Appeal may yet be forthcoming.
Acoustic shock is a condition with symptoms including tinnitus, hyperacusis and dizziness, which can make even the most simple of tasks extremely painful when exposed to normal everyday sounds.
The Royal Opera House and other orchestras will need to re-assess their health and safety policies and procedures, alongside the protection they currently afford musicians, in light of this landmark High Court ruling. The very clear message that has been sent is that they are not exempt from Noise at Work legislation.
Going in to the case, the story began back on September 1, 2012, when Mr Goldscheider was seated directly in front of the brass section of the orchestra during a rehearsal of Wagner’s powerful Die Walküre opera in the orchestra pit at the Royal Opera House. During the rehearsal, the noise levels exceeded 130 decibels, equivalent to that of a jet engine. The court was told that his hearing was irreversibly damaged and that he now has to wear hearing protectors to carry out everyday tasks such as preparing meals and household chores. Mr Goldscheider left the ROH in July 2014 as a result of his injury, ending a stellar career.
His condition is particularly hard for him to come to terms with, as he now is unable to listen to his 18-year-old son Ben – a rising star in his own right and outstanding French horn player – perform the music that was once so passionate about performing.
This case resonates with me as I work with so many acoustic consultants who are involved in the music and entertainment industries. So much so, Cirrus launched a national campaign last year entitled “Noise Changes Lives”, to highlight the impact that noise can have on people in the workplace.
Mr Goldscheider’s case is sadly a classic example of where noise has literally changed his life in every sense; from the day to day tasks he now struggles to perform, the loss of his livelihood, right down to being unable to hear his own son play. The example could not be starker.
During the High Court hearing, the Royal Opera House argued that acoustic shock does not exist, and that if it did, Mr Goldscheider did not have it. ROH countered that he had developed an entirely natural hearing condition, known as Meniere’s disease, at exactly the same time as the super-loud, high intensity noise burst behind his right ear. However, Mrs Justice Nicola Davies took a different view, stating: “I regard the defendant’s contention that Meniere’s disease developed at the rehearsal, as stretching the concept of coincidence too far.”
She added: “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.”
In a statement, the ROH said the expert medical advice it had consistently received was that long-term hearing damage could not be caused by an isolated incident of exposure to live music.
“Although this judgement is restricted to our obligations as an employer under the Noise Regulations, it has potentially far-reaching implications for the Royal Opera House and the wider music industry.
“We do not believe that the Noise Regulations can be applied in an artistic institution in the same manner as in a factory, not least because in the case of the Royal Opera House, sound is not a by-product of an industrial process but is an essential part of the product itself.”
Damages will be assessed at a later date and could be in excess of £750,000 in lost earnings alone, according to Acoustic Consultant Richard Beale, of RB Health & Safety who Cirrus have worked with for many years. Richard works with many of the famous theatres and opera houses in London’s West End and has extensive experience in this area.
He told me: “There were many alleged breaches of the Noise at Work legislation put forward by the claimant, which were accepted by the Justice and will make serious reading for the industry. I wouldn’t expect to see major changes overnight, but an immediate and sufficient acoustic risk assessment should be top of the list – that was one of the alleged failings put forward by Mr Goldscheider legal team.”
This is one of my longer blogs but bear with me. The alleged breaches put forward included:
- A failure to make a suitable and sufficient assessment of the risk to the health and safety of the claimant from noise (Regulation 5(1));
- Failure to eliminate, at source, the risk to the claimant’s hearing posed by his noise exposure, or, if that was not reasonably practicable, to reduce that risk to as low as reasonably practicable (Regulation 6(1);
- Although the claimant was likely to be exposed to noise at or above an upper exposure action value (“EAV”) (namely 85 dB(A)Lepd) or a peak sound pressure of 137 dB(C), failure to reduce his noise exposure to as low a level as reasonably practicable by establishing and implementing a programme of organisational and technical measures, other than the provision of personal hearing protectors (Regulations 6(2));
- Failure to ensure that the claimant was not exposed to noise which, despite the attenuation afforded by personal hearing protectors, exceeded an exposure limit value (namely 87 dB(A)Lepd) or a peak sound pressure of 140 dB(C) (Regulation 6(4));
- As the orchestra pit was in a place where the claimant was likely to be exposed to noise at or above an upper EAV (85 dB(A)Lepd) or peak sound pressure of 137 dB(C), failure to ensure that the orchestra pit was designated a Hearing Protection Zone, demarcated and identified by appropriate signage and the claimant was not to enter without wearing suitable personal hearing protectors (Regulation 7(3));
- Failure to ensure that the hearing protection provided to the claimant was fully and properly used (Regulation 8);
- Failure to provide the claimant with suitable and sufficient information, instruction and training (Regulation 10).
In the words of Mrs Justice Davies, “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.” The judge also said the Foundation was in breach of a number of Control of Noise at Work regulations, and that it was this noise that had led to Goldscheider’s hearing problems. Had the foundation complied with its statutory duty, Goldscheider would not have been exposed to the level of noise he endured. She added:
“As an employer, you [ROH] have a duty under the Noise at Work regulations, which extends to performers, musicians, front of house and rear of house staff.”
This hasn’t changed. However, the ruling will likely ensure that industry employers review their policies and procedures. The Royal Opera House also claimed ‘contributory negligence’, but whilst the judge acknowledged that Goldscheider could have left the area at any time, the nature of the injury meant that he would have suffered the damage before he was able to leave.
Tools for the job – Solutions for noise monitoring in such a unique work environment
The Cirrus doseBadge has been widely used in a number of studies looking at the noise exposure of musicians over the past 10 years, where it has proven itself to be effective and accurate. The small size and light weight of the doseBadge made it ideal for these studies as traditional noise dosimeters (with a cable to the microphone) are considered cumbersome and often restricted the movement of the musicians. For example, in the 2016 study carried out by the University of North Carolina, measurements were made on fifty-seven students that were categorised by their primary instruments (bass trombone-1, bassoon-2, cello-2, clarinet-4, flute-2, horn-2, oboe-2, percussion-7, piano-4, saxophone-4, trombone-3, trumpet-5, tuba-2, viola-3, violin-1, and voice-13).
To allow the doseBadge to be used in performance environments, the CR:110A/BLK was developed. This has the same measurement capabilities as the existing CR:110A version (MK:4) but features a black case rather than a silver one. As most concert performances involve the musicians wearing black or dark coloured clothing, the silver case was too obvious. The black case made the doseBadge inconspicuous and meant that it could be used in both rehearsal and performance environments.
The new version of the doseBadge, the doseBadge5, also features a black case with no cables, controls or display, again making it ideal for the measurement of the noise exposure of musicians and other performing artists. The addition of the octave band filters, the extended measurement range and Bluetooth® control means that the data provided can be used to assess the effectiveness of hearing protection. The doseBadge has been, and continues to be, the most effective tool for the measurement and assessment of noise exposure in the performing arts. The ease of use and the informative, accurate measurement data that can be gathered, allows for more informed decisions to be made in order to reduce performers’ exposure to dangerous levels of noise, thereby protecting their hearing and safeguarding their ability to perform.
For those who want to read up on this subject a little more, then try:
Monitoring Personal Noise Exposure in West End Theatres with the doseBadge5
Richard Beale, RB Health & Safety Solutions Ltd
Student’s music exposure: Full-day personal dose measurements
Noise Health. 2016 Mar-Apr; 18(81): 98–103.
Nilesh Jeevandas Washnik, Susan L. Phillips, and Sandra Teglas
University of North Carolina
A SOUND EAR II
THE CONTROL OF NOISE AT WORK REGULATIONS 2005 AND THEIR IMPACT ON ORCHESTRAS
Published by the Association of British Orchestras, February 2008
Noise exposure and hearing thresholds among orchestral musicians
Bradford C. Backus, Terry Clark, and Aaron Williamon
Ear Institute, University College London, UK
Centre for Performance Science, Royal College of Music, London, UK
A descriptive analysis of university music performance teachers’ sound-level exposures during a typical day of teaching, performing, and rehearsing.
Dr Sandra Mace, School of Music, University of North Carolina Greensboro Music Research Institute, School/Corp. Greensboro, NC, USA