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Sound reason

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A former member of the Royal Opera House orchestra has won a case against his ex-employers for hearing damage. Will the ruling – the first of its kind – be the catalyst for similar claims and does the entertainment and industry now need to sit up and take notice?


While rehearsing Wagner’s Ring Cycle in 2012, Chris Goldscheider, a viola player with the Royal Opera House (ROH) orchestra developed acoustic shock; a condition usually associated with call-centre workers, which includes symptoms of tinnitus, nausea and dizziness. The musician, following a recent promotion in the ensemble, had been positioned near the brass section and placed directly in front of the principal trumpet.

Justice Nicola Davies, the High Court Judge overseeing the case, found the ROH in breach of The Control of Noise at Work Regulations 2005 and ordered them to pay out £750,000 in compensation to Goldscheider, including legal fees.

The ruling, the first of its kind in the leisure and entertainment industry, could lead to a torrent of similar claims as musicians realise the orchestra pit is no different to the noisy factory floor; furthermore, the judgement could also bring HSE prosecutions in similar circumstances, a rarity until now.

The regulations recognise no distinction between a factory and an opera house, said the Judge. Photograph: iStock/cyano66a

Kizzy Augustin, health, safety and environment partner at Russell Cooke Solicitors, followed the case intently. She agrees the HSE could be circling organisations like the ROH (charitable entities and publicly-funded organisations) and prosecute on the same basis. “There’s nothing to stop them [HSE] from using the same issues or same objectives in terms of the risks at work which could quite easily translate into a prosecution,” she says.

Civil claims for hearing damage as a result of exposure to noise at work however, are extremely common making up approximately 75 per cent of all occupational disease cases, and with HSE estimating 20,000 workers currently suffering work-related hearing problems and a further two million being exposed to unacceptable levels in the workplace, the possibility of workplace hearing loss being treated in the same way as asbestos, another long latency disease, could be on the horizon.

Long-latency diseases such as mesothelioma and hearing damage can develop over a long period of time and be difficult to detect initially. “Prosecutions for asbestos-related diseases are certainly more common but the impact of noise on people is something we can’t really see, or we can’t see for a while,” Augustin says.

She also fears the current legislation is worryingly overlooked by industry and not just the entertainment sector. “I don’t think it [The Control of Noise at Work Regulations 2005] is well known at all,” she says. “It isn’t used that much and something that’s not relied upon. It was for a while, when it was part of The Factories Act, but now companies, in particular smaller companies, seem to be unaware of it.”

The Factories Acts 1959 (and 1961) meant employers had to make the workplace as safe as far as reasonably practicable, which included noise exposure to workers. It wasn't until the 1989 Noise at Work Regulations came into force as a result of the EEC’s Noise Directive that the risk of noise to a person‘s hearing was given more attention.

The new regulation was significant as it set out specific limits of exposure levels, where previously no limit had been set. Employers were now expected to carry out noise risk assessments and take action to reduce noise levels by introducing hearing protection, for example.

A further European Noise Directive was introduced in 2003 leading to the Control of Noise at Work Regulations 2005, enforced in April 2006. The legislation was now far reaching across workplaces and encompassed the leisure and entertainment industry, which was given a two-year transition to fall in line. A key part of the legislation was the introduction of a daily limit upper exposure value of 85dB(A) and fast forwarding to the events at the High Court in March, it was in excess of this amount that viola player Goldscheider had been exposed to while rehearsing with the ROH orchestra.

Noise at work regulation and legislation has evolved considerably since the Factories Act of the late 50s and early 60s. Interestingly, Justice Nicola Davies summarising the case said: “The regulations recognise no distinction between a factory and an opera house”.

Given this was the first time the music sector‘s health and safety responsibilities have been explored in court, it’s something the industry should now take notice of and heed.

 

 

 

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