Next month, the Royal Opera House is appealing against a landmark ruling in which a viola player was compensated for irreparable hearing damage. Medical and legal experts tell Tim Bano about the details of the case and explain why it could have a devastating effect on opera and musical theatre
In the centre of the middle ear is a muscle measuring just over a millimetre in length. Called the stapedius, it’s the smallest muscle in the human body and controls the amount of noise that enters the ear. This minuscule bit of human tissue could be behind a seismic change across the music, theatre and entertainment industries.
In 2012, Christopher Goldscheider was playing viola in a rehearsal of Richard Wagner’s Ring Cycle at the Royal Opera House, a piece not known for its restraint. Sitting in front of the trumpet section during a particularly loud part of the rehearsal he felt sudden pain in his ear, which continued long afterwards. He is now unable to perform professionally.
Goldscheider sued for irreparable hearing damage, and last year a High Court judgement ruled that the ROH had breached health and safety regulations, had exposed Goldscheider to too much noise, and was liable for the pain and hearing loss suffered. An appeal is due to be heard next month; in the meantime the case has the industry spooked.
The worry is that, if the appeal is unsuccessful, insurance premiums will go up, small organisations will be forced to close, pits will have to be redesigned, regulations will be enforced to an impracticable degree and young people will be deterred from entering the industry. Essentially, it could have far-reaching and ruinous effects for the whole sector. That’s the worst case.
The basis of all health and safety legislation is that everyone has the right not to be hurt at work: to clock in, clock out and go home unharmed. In 2003, the European Union issued a directive demanding that member states enact legislation to prevent employees from being exposed to too much noise at work, particularly in factories or other noisy environments.
So on April 6, 2006, the Control of Noise at Work Regulations came into force in the UK. Among other things, they demand that employers reduce noise in workplaces as much as possible, carry out rigorous risk assessments and provide training for employees on the dangers of too much exposure.
And the regulations have been effective. Gerard Stilliard, head of personal injury strategy at Thompsons Solicitors, notes that “we’re not seeing so many of these types of personal injury cases in heavy industry any more, no doubt in part because of the regulations’ impact”. But it quickly became apparent that the definition of ‘noise’ in the regulations made no distinction between a chainsaw and a cello.
Health and safety expert Ruth Hansford, who worked with the BBC to produce a comprehensive guide to noise exposure for musicians and is now working towards a PhD on musicians’ hearing, explains: “There was a lot of discussion at the time that the UK government had over-interpreted the EU directive. The UK regulations say that ‘noise means any audible sound’ but there’s no definition of that kind in the directive.”
Also, the 2006 regulations were stricter than the 1989 UK regulations: acceptable noise levels were lowered by five decibels, which brought many musicians into the regulations’ scope. On top of that, the EU directive explicitly says regulations shouldn’t hold back small and medium enterprises, which is exactly what orchestras, music organisations and small theatres tend to be. “Even now, not all member states have legislation of this kind, and some that do don’t apply them to orchestras,” Hansford says.
The ROH vigorously argued that “the noise produced by the professional orchestra is not a by-product of its activities, it is the product”. In other words, music is deliberate noise, not accidental, and should be treated differently in law.
“Some would say the difference between music and noise is taste,” Hansford says, and while “it is definitely problematic that the regulations don’t distinguish between an orchestra and a factory”, ultimately the ear doesn’t care whether it’s hearing a Bach cantata or a pneumatic drill. “It’s the levels that damage it.”
But what is the solution when the letter of the law comes into conflict with the practicality of conducting a business? The government’s solution, rather than changing the regulations, was to give the music and entertainment industries two years’ grace, and for those sectors they came into force – unchanged – on April 6, 2008.
Ten years later, almost to the day, this first major litigation was brought. Many had been expecting it: a test case where the long-term effects of loud music on a musician’s hearing could be explored in a court, and enshrined in case law for the benefit of future, similar claims. So this was hardly a surprise. But then the whole thing took a very unexpected turn.
A huge amount of research has been carried out into noise-induced hearing loss. As Dr Nicky Seymour, an ear, nose and throat registrar at the Royal Sussex County Hospital, explains: “We get lots of patients with it: people who used to go to a lot of rock concerts and didn’t wear earplugs, that sort of thing. It’s a very gradual worsening of the hearing, I’d see that very commonly in my otology clinic.”
Everyone reckoned that, if a musician was going to sue for hearing loss, it would be on this basis. All the health and safety guidelines, the studies and the research had been focused on long-term, noise-induced hearing loss.
Suddenly this case appears and the medical argument was for something pretty much unheard of, and certainly never applied in this work context before: a condition called ‘acoustic shock’.
To understand acoustic shock, it is helpful to explain how hearing actually works. Noise is generated by pressure levels in the air. The loudness of a noise depends on the pressure level of the energy producing it, which is measured in decibels (dB). Seymour says: “Most people hear above 20dB, whispering would be around 30dB, a normal conversation around 60dB, and a concert above 100dB.” Plus the ear is more sensitive to some frequencies than others, so sound pressure across a range of frequencies is given a weighted measurement, dB(A).
In the Control of Noise at Work Regulations, there are various ‘action values’ – the level of noise where an employer is obliged to do something about it. So when noise exposure reaches 80dB(A), the employer has to provide training and make hearing protection available. When it hits 85dB(A), immediate steps have to be taken to reduce the noise.
These values are measured and averaged over a time period – either an eight-hour day, or over a week – which means musicians have a responsibility to make sure their overall noise exposure, including outside the workplace, doesn’t get too high.
So if, say, a trombonist rehearses with the orchestra for six hours, then takes the Central Line home for 30 minutes, then practises fortissimo for an hour, the exposure is going to be much higher than a flautist who cycles home wearing noise-cancelling headphones, can’t be bothered to practise, and spends the evening reading quietly. Simply: going over the recommended upper levels frequently is likely to cause hearing loss over time.
At 140dB (though it can be lower) noise can do instantaneous physical damage, called ‘acoustic trauma’, such as bursting the eardrum. This could be, say, a jet engine, a gunshot or a cannon blast. In a normal orchestra layout, violas are exposed to one of the lowest levels of noise per day, while trumpets receive the highest dose. But for the Ring Cycle, the pit configuration was changed, which put the violas right in front of the trumpets.
“A lot of claims are cumulative, over months and years,” Thompsons Solicitors’ Stilliard says. “This case is unusual: it was an acute reaction to noise on a particular day.” Rather than claiming long-term, noise-induced hearing loss, or arguing for sudden acoustic trauma, instead the claimant went for a middle ground: a single incident, but causing permanent and irreversible pain and hearing loss: acoustic shock.
Acoustic shock is a relatively new and uncommon term, referring to “a cluster of symptoms,” (according to the definitive Scott-Brown’s Otorhinolaryngology textbook), “observed among call-centre operatives who are exposed to sudden unexpected sounds through their headsets or telephone handsets”.
It happens “when there is exposure to a short-duration, high-frequency and high-intensity sound through a telephone headset” and can cause pain, tinnitus, fullness in the ear and, less commonly, hearing loss. The term came from studies in Australia, among a fairly small sample of workers in a call centre.
“I haven’t heard of it,” says Seymour. “It’s not something that I have come across as a term.” But she can envisage the mechanism that would cause it: namely the stapedius muscle, that millimetre-long muscle in the ear, is taken by surprise at a loud noise and doesn’t have a chance to kick in and regulate the amount of sound that enters the ear.
Acoustic shock does not have to be particularly loud, but has to be surprising enough to bypass the stapedius reflex, and symptoms can start immediately. So far, it has only ever been applied to call-centre operatives using headsets. There has never before been a case of acoustic shock in the music industry.
The ROH, on the other hand, argued that Goldscheider had an underlying condition that was worsened by the loud rehearsal noise. They claimed it resembled Ménière’s disease.
Seymour says: “Ménière’s disease is a poorly known-about condition, and we don’t know what causes it. It’s to do with the fluid and electrolyte balance in the cochlea. It’s a clinical diagnosis – so there’s no test for it – but typically people get a one-sided hearing loss that comes on suddenly and it’s almost always associated with horrendous dizziness, and a fullness in the ear. It wouldn’t be diagnosed after just one episode, the patient would usually need at least two episodes for it to be diagnosed as Ménière’s.”
So, on the one hand, there’s a condition that few ENT doctors have heard of, let alone musicians or their employers. On the other a disease that, although widely recognised, is barely understood.
In the end, the judge dismissed Ménière’s because two adjacent viola players also complained of similar symptoms during the noisy rehearsal. She said: “I regard it as beyond coincidence that the two viola players should each complain of the level of noise and, resulting from it, problems with hearing.”
As Hansford points out, the mechanism of acoustic shock is that a noise is so unexpected that it bypasses the stapedius reflex, and yet: “The score for Die Walküre has been written down for 150 years so it’s not that much of a shock.”
The simple part of the case is that the judge ruled the ROH had breached the Control of Noise at Work Regulations in several ways: it failed to carry out an adequate risk assessment, failed to do everything ‘reasonably practicable’ to eliminate the risk of noise exposure, failed to designate its orchestra pit as a mandatory hearing protection zone, failed to train orchestra members about the risks, and “compromised its standard of care for artistic considerations”. The judgement said: “Had the defendant complied with its duties, he would not have been exposed to the noise level.”
This failure to implement the regulations fully has worried many other organisations, because for orchestras and places that use live music the regulations are very hard to enforce. Noise is a certainty for musicians at work, and it’s a certainty for those employing musicians. It is virtually guaranteed that at some point the ‘action values’ will be hit, and steps will have to be taken to reduce noise. So what can employers do?
The most obvious solution, which the regulations only encourage as a last resort, is ear protection. All members of the ROH orchestra are given custom-moulded earplugs, and it’s common practice among big employers to provide bespoke hearing protection to employees. But there’s a reluctance among musicians to use them – and understandably so: how are they supposed to play in an orchestra when they can’t hear the other players?
The trouble is that hearing protection becomes mandatory as soon as an orchestra reaches the upper ‘action value’ – but the ROH left it up to the discretion of the players whether or not to wear them. The view was that the players should be treated like adults.
Other solutions include screens to absorb or deflect noise. There are many types of acoustic screen available too: moveable ones that attach to walls to absorb sound. The judgement said: “Musicians felt they could not judge how loudly they were playing, as a result they played louder to compensate.” This was not helpful.
What about the concave screens that go around the sides of the musician’s head to reduce noise for the individual? The judgement: “They are large, not transparent, they can obstruct other players’ views of the conductor and take up a lot of space between the players which affects the layout of other parts of the pit.” Also not helpful.
Then there are larger, transparent screens that can be positioned between different sections of the orchestra. “They are of limited use because they reflect the sound back to the player who is playing into them, thereby increasing the noise exposure.” Once again, not helpful.
One of the best things an orchestra can do is to add more space between players, but this is little more than a pipe dream for pits in buildings such as the Royal Opera House, a grade I-listed auditorium. Besides, the ROH did try to enlarge its pit in 2015 by taking seats out of the stalls. This cost it £343,000 in lost ticket sales.
In 2012, acousticians at building and design consultants Arup looked into expanding the pit, but concluded that the only way to do it would be to extend backwards, leaving more players under the stage overhang, and thereby exposed to higher levels of noise. Pit expansion was tried by an orchestra in Copenhagen and there was no effect on noise reduction. Also, the judgement says that if the ROH tried to remove the pit overhang, “the stage would fall down”.
“It’s just a massive balancing act,” says Hansford. “Musicians have not been uniformly enthusiastic about wearing ear protection, but the guides that I wrote all said ‘just do it’. Even though the regulations say hearing protection should be a last resort, at the end of the day it’s all you’ve got left.”
That literally means counting musicians in and out, ensuring they’re wearing earplugs and doing spot checks. “Is that reasonably practicable?” Hansford asks. “Well, the judge found that the Royal Opera House was in breach because it didn’t do that.”
Although Hansford argues that “high-profile employers are already doing an awful lot, and have been doing an awful lot even before the spotlight was on them”, what looks certain is that employers are going to have start taking the regulations even more seriously.
But there are two other big concerns: what will be the impact on insurance premiums if the ROH’sappeal is unsuccessful, and will this case open the floodgates for other litigations?
The very fact that this case has gone to court is enough to send premiums skyrocketing. But the question of whether this could pave the way for similar claims still stands. And there are good reasons why employers don’t need to worry too much yet. First, a spokesman for the Musicians’ Union, when asked whether more members have been coming forward since the Goldscheider case, said: “Not that we are aware of.”
Second, the legal landscape has changed since 2012, the year of the incident. In 2013 a piece of legislation called the Enterprise and Regulatory Reform Act came into force. Broadly, it was a wide-ranging attempt by the coalition government at deregulation and cutting red tape.
But one of its provisions was that an employer is no longer liable simply by breaching statutory regulations, such as the Control of Noise at Work Regulations. The burden is now on the claimant to prove negligence by the employer instead. What this means is that fewer personal injury claims make it to trial, and fewer are successful. It was a piece of legislation that, unsurprisingly, lawyers such as Thompsons campaigned against.
Stilliard explains: “In a claim now, you could still point to the regulations saying that this is a duty on the employer. The employer has a legal duty to comply with the regs and to reduce the noise. But a claimant injured by noise can’t automatically rely on the regulations to establish that the employer is liable to pay damages. That makes a big difference.”
The facts of this case are pretty unusual: first, the orchestra was playing Wagner, known to be very loud; second, the orchestra pit was rearranged; third, they were rehearsing a very loud section; fourth the medical diagnosis of ‘acoustic shock’ seems to be unique in this context.
“If a musician came to me tomorrow,” says Stilliard, “and said: ‘I’ve heard about Mr Goldscheider’s case, I’ve got hearing loss and I want to bring a claim’, the first thing I would say is: ‘Forget about Mr Goldscheider’s case.’ It’s important, but I don’t think it’s likely to open floodgates for loads of litigation.”
There’s still the risk that a case of this sort might discourage young people from considering careers in music, if they think there’s a possibility of their ears being permanently damaged. But Hansford says that musician-training programmes – at conservatoires, for example – are pretty hot on this issue now, and that will eventually filter up into the industry.
With so much uncertainty, however, particularly when it comes to the insurance question, there’s a real worry that this case is going to change the landscape of all live music in this country. All we can do is await the outcome of the appeal in March and, in the meantime, keep our ears peeled.