“2. In the course of his employment in the said workplace, the Claimant was exposed to noise (namely the music played by the orchestra and its members) at such frequencies and of such intensity and duration as was likely to be, and which was, injurious to his hearing. Particulars of noise exposure In the afternoon of Friday31 August 2012 and all day on Saturday1 September 2012 , the orchestra (including the claimant) were in the orchestra pit rehearsing Richard Wagner’s ‘Die Walküre’. As a result of the way that the conductor (at all material times acting in the course of his employment by the Defendant) arranged the orchestra, the Claimant was positioned immediately in front of a group of about 18 to 20 brass players. As a result of the sound level at which the orchestra was directed to play and the length of time for which it was directed to do so, the Claimant was likely to be and was exposed to noise at a level which reached or exceeded 87 dB(A), alternatively 85 dB(A), alternatively 80 dB(A) when averaged over 8 hours (or for substantial periods of time) and/or which reached or exceeded a peak sound pressure level of 140 dB(C), alternatively 137 dB(C), alternatively 135 dB(C). The Claimant was provided with and was wearing hearing protection. However, it was insufficient to prevent his exposure to a harmful amount of noise.”
“1. Deterrent effect of potential liability A court considering a claim in negligence or breach of statutory duty may, in determining whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions against a risk or otherwise), have regard to whether a requirement to take those steps might— (a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or (b) discourage persons from undertaking functions in connection with a desirable activity.”
“When looking through the schedule, please try and bear in mind the following points: 1. Your own personal workload It may be tempting to work in blocks, but please take a realistic look and consider the effects this will have on you and your buddy in terms of workload and noise exposure. Please also remember to schedule yourselves carefully around the midpoint in the season as this is often when people find themselves very tired. … 6. Noise Exposure For your information we have included noise readings in the Production Book where we have them. As noted these are the average noise exposure if the session is the only one you play in in any given day. Please consider your exposure to noise where possible when planning your season. For shows where the average noise exposure is over 80 dB we would recommend that you wear hearing protection when possible. For shows where the average noise exposure is over 85 dB you should wear hearing protection for the whole of the session…”
“[The claimant’s] desk partner wore personalised earplugs with 25 dB inserts throughout the entire rehearsal and performance period of the Ring. On 1 September she said the noise was unbearably loud even with her very heavy duty plugs in. Following the two rehearsals that day she felt physically sick and found that her hearing was affected. She because (sic) much more sensitive to noise for a number of weeks after these rehearsals. She did say, though, that the creation of the one metre gap between the brass and the back desk of the violas where she was sitting led to a definite decrease in the noise level ….”
“• No distinction is made in the Noise Regulations between the noise generated as a by-product of industrial processes, and sound that is deliberately created for enjoyment and entertainment. • In practice the HSE has agreed that as long as we show we are doing everything we can to lower sound levels and where possible mitigate their effect, they will turn their attention to other H&S issues. • We are taking our responsibilities as employers very seriously but are unable to: ◦ Ensure the legal limits on noise exposure are not exceeded ◦ Monitor the daily exposure of each individual player ◦ Fulfil our legal duty to ensure earplugs are used by players likely to be exposed above the Upper EAV (UEAV) • There is a very high likelihood we will be sued for personal injury by one of the players currently off sick with noise related problems. He would not, however, be able to argue all the liability is on our side. • The players’ attitude to their responsibilities is improving but we are still working with some who are reluctant to keep their audiometry up to date. • Although top of the range ear plugs are made available, they are not fit for purpose for the wind and brass in particular. We are taking advantage of technological advancement where possible but the use of plugs is patchy at best. • Some players are reluctant to admit they have any noise related problem and put themselves at risk as a result. • The artistically independent RO & RB are unable to plan their productions together. Simultaneous multiple loud productions increase the chance of more players being overexposed. • Double ballet days are a particular challenge as we have insufficient players to field two different orchestras on the same day. • The open part of the pit is too small but members of the ongoing Pit Review Group (Hazel, Sally, Stefano) have agreed it is structurally impossible to remove the stage overhang. • Expanding the pit into the auditorium would give us significant financial and planning problems with no guarantee noise levels would reduce to those required by the Noise Regulations. The impact on the acoustics of the auditorium could also be adverse…”
“Options for increasing the size of the pit were undertaken by a Pit Review Group during the 12/13 season. We understand that this was done purely from a cost and planning perspective with no acoustic analysis. The conclusions from this review were as follows: • Expanding the pit into the auditorium would require minimum three-month shut down, will affect stage-pit balance and will give no guarantee that noise levels will be reduced. • The stage overhang cannot be removed as it is an integral part of the structure which holds up the stage. • Absorbing the corridor behind the pit may cause issues with access to existing services and will trap more players beneath the overhang. Whilst these options were rejected three years ago the ROH is now willing to reconsider if there are any merits in them in terms of sound level reduction for the orchestra.”
“Whilst the ROH has a clear and detailed strategy in place for controlling sound level exposure to the musicians in the pit, some are still exposed to high levels, exceeding the Upper EAV as defined in the Control of Noise at Work Regulations (2005). This investigation has confirmed through measurement, study and modelling that musicians positioned under an overhand are exposed to sound levels which are up to 3dB higher than they would be if they were in the open. Expanding the pit into the corridor behind, whilst providing greater separation between the musicians will result in more players sitting under an overhang. This must be avoided and therefore this is not an appropriate course of action. Removing the overhang can potentially provide a reduction in level of 1-2dB for the players below the overhang. This is a small but useful reduction for the players most at risk, but the works and results of such an action would be structurally and artistically challenging. Based on this study, the most beneficial modification to the pit in terms of helping to reduce sound levels would be to expand the pit into the auditorium by at least 2 rows. This would allow the entire orchestra to sit out in the open, resulting in a reduction in sound level of up to 2dB for some key players who are normally positioned under or near the overhang.”
“During this meeting we discussed putting the woodwind section ‘on the side’ (to the left hand side of the conductor) – a change from the previous occasion that we have conducted ‘Ring’ here in London where the woodwind section was ‘in the middle’ – directly in front of him. We also had a conversation regarding the brass section. The last time he had performed the Cycle (and as is common practice in many Houses around the world) the trumpets, trombones, French horns and Wagner Tubas were to be positioned together on the same side of the pit. In addition, I had also been requested by my timpani players to find a way in which the timpani could be positioned with the brass players as the majority of the time the two sections play together. Mr Pappano agreed that we should attempt this. As a result I came up with a plan that was set for the first three days of rehearsals for the ‘Ring’ on August 30, 31 and September 01 2012.”
“94 In situations where the boundaries of the zone cannot be marked, eg where the work requires people to move the noise sources about a great deal, you should make adequate alternative arrangements to help make sure that people know where or when protectors should be worn. These could include: (a) attaching signs to tools warning that people who are using them must wear hearing protectors; (b) written and verbal instructions on how to recognise where and when protectors should be worn, eg by designating particular tasks or operations as ones where protectors must be used.”
“Acoustic shock is a recently recognised clinical entity: following an abrupt, intense and unanticipated acoustic stimulus, usually delivered by a telephone handset or headset, some individuals report a symptom cluster that includes otalgia, altered hearing, aural fullness, imbalance, tinnitus, dislike or even fear of loud noises, and anxiety and/or depression. Symptoms start shortly after the triggering acoustic incident and can be short-lived or can last for a considerable time. If persistent, the condition can lead to significant disability… A formal treatment program has not yet been proposed, but the potential utility of modern therapeutic techniques for tinnitus and hyperacusis are considered…”
“Noises that generate acoustic shock do not have an intensity and duration profile that would be regarded as dangerous to the auditory system within the framework of existing workplace legislation. In this respect, it is important to distinguish acoustic shock from acute acoustic trauma that is experienced with exposure to extremely loud sounds, over 140 dB. Similarly, acoustic shock is unrelated to noise-induced hearing loss, in which repeated exposure to sounds of an intensity greater than 85 dB causes cochlear damage.”
“Viola player in Royal Orchestra, on Saturday music was too loud and despite earplugs, since Sunday has felt pressure/whooshing in the ears, hearing loss, no tinnitus, no discahrge (sic), pain below ear on right. No headaches, no fevers. Otherwise well … explaied (sic) likely eustachian tube dys and trial stemetil…”
“He noted discomfort in his ears (particularly the right ear) on Friday; this increased on Saturday and he also began to feel unstable as the week-end progressed. He has a sense of fullness in his right ear and unsteadiness. … On examination both ear-drums appeared intact and air-filled. … an audiogram demonstrated a high frequency hearing loss in the right ear, which is slightly worse than a prior audiogram supplied by Ms Grierson of 2010. He notes that in the intervening time was exposed to loud noise in that right ear, so it is conceivable that he had some acoustic trauma in between the prior audiogram and the recent one. … my impression is cochlear irritation and presumed acoustic trauma. I discussed this with Professor Shak Saeed, the Professor of Otology and we both agree that at this 123. point in time … a course of oral steroids is the most appropriate management. …”
“At this point my sense is that Mr Goldscheider would be best served by staying in a quiet environment and not exerting himself for the next couple of weeks. I have not put him on any particular medications … I am asking if Professor Saeed would be willing to see him…”
“The rehearsal lasted around six hours and for the remaining part of the day Mr Goldscheider felt generally unwell with some imbalance and discomfort behind his right ear. There was a feeling of fullness in the right ear with possibly diminished hearing. …For the last ten days he has had high pitched whistling tinnitus and finds that when he is playing viola there is marked hyperacusis with some distortion. …His hearing was diminished more so on the right side. The tinnitus is constant and causing sleep disturbance and his hyperacusis remains troublesome. There is no previous history of otologic problems and his general health is good. …general ENT examination was unremarkable. Neuro-otological assessment was interesting in that whilst there was no spontaneous nystagmus he was certainly unsteady on Romberg’s testing with an Unterberger’s test positive to the left. Repeat audiometry today shows a high frequency hearing impairment on the right side from 4 kHz onwards and a notched high frequency change on the left which may be more longstanding. In view of the symptoms and the events around the weekend of 1 September my feeling is that there has been some cochlearvestibular biochemical changes with possible secondary hydrops. …”
“…acoustic trauma with permanent hearing loss Right ear, hyperacusis and tinnitus. PT was improving and had returned to work – with lower decibel from string part of orchestra. Over last 1-2 days increasing hyperacusis and tinnitus andacute onset vertigo and pain in r earm [sic], similar to initial episode. …PT very distressed and wnats [sic] to see Prof Saeed again at Harley Street, won’t be covered by insurance. PT worried will lose career if takes more time off work. To d/w Dr Russell.”
“My feeling is that he may well have a degree of inner-ear hydrops and therefore I have appropriately commenced him on bendrofluazide … I shall also arrange for him to be seen by our Hearing Therapist as a matter of urgency as he clearly is struggling.”
“1. Hyperacusis; 2. Hearing difficulties worse in the right ear; 3. Tinnitus; 4. Right aural pressure sensation; 5. Problems with balance. Above symptoms triggered by exposure to noise.”
“Mr Parker states Mr Goldscheider’s symptoms are all consistent with acoustic shock. They are not. Genuine hearing loss is not a part of acoustic shock, neither is genuine imbalance. …his symptoms are not entirely typical of Meniere’s but with pressure, imbalance, tinnitus and hearing loss that is the closest condition to his symptoms described in otological textbooks and I am happy to adopt any other term which can be demonstrated to match his symptoms better. Hydrops is not caused by acoustic shock. …if acoustic shock exists he cannot have it because the circumstances in which it arose were completely incompatible with this condition as it is described because there was no shock or startle. …Acoustic shock is basically alleged to occur in unprotected subjects wearing headphones, typically call centre workers, exposed suddenly and unexpectedly to unpleasant and brief loud noise. While it was originally claimed that this syndrome could involve genuine hearing loss and genuine vertigo, this was rapidly dropped when it was realised it was impossible for such noise levels to cause such damage and all that is claimed in modern times is that acoustic shock may involve sensation of imbalance or an impression of muffled or abnormal hearing not accompanied by hearing loss as confirmed on pure tone audiometry. … Whereas AT (acoustic trauma) and NIPTS (noise-induced hearing loss) are well-attested and investigated there is no good evidence that acoustic shock exists. So far as it is described, it is not possible in this case because the circumstances were not those described as necessary for acoustic shock which Mr Parker refers to at times as acoustic startle which I think is a unique use of the terms although Westmacott has described acoustic startle as the cause of acoustic shock but not as a separate condition. There was nothing unexpected or untoward about his noise exposure. He has clearly had similar noise exposures in the past without developing any such symptoms. He was wearing protection not earphones. The sound was not unpleasant. There is no evidence of NIPTS (aka NIHL), acoustic trauma or acoustic shock. There is no doubt he has a genuine hearing loss and has had genuine balance problems and these have arisen from an organic disorder in the right inner ear. It appears the left inner ear has not been involved at all or, if it has, to a very much lesser extent and yet the exposure must have been symmetrical again requiring engineering confirmation. There is no evidence on the audiograms of the bilateral symmetrical loss commensurate with NIPTS or AT and genuine hearing loss is not caused by acoustic shock. … There is no doubt that he has had a disorder of his right inner ear involving both the hearing part, the cochlea and the peripheral vestibular system, the balance part and that his symptoms are closest to those described in Meniere’s syndrome although not entirely typical of the latter. … Meniere’s syndrome or hydrops is characteristically unilateral but may become bilateral as time passes, certainly usually asymmetric at the start. The only logical explanation for what has happened in this case is that he was developing his first episode of hydrops at the time of the rehearsals. The other point which is quite clear from the records is that his symptoms increased some time after the alleged causative traumatic episode, did not come on simultaneously, have developed, fluctuated, recurred and persisted over time all in a way inconsistent with NIHL, acoustic trauma or acoustic shock (although initially too early in onset for delayed hydrops). Neither acoustic trauma nor NIHL are directly associated with imbalance. If delayed hydrops following acoustic trauma occurred the symptoms could then develop and progress. However, the evidence is that this condition almost certainly does not exist, there was no delay in his symptoms where before the noise in the afternoon. …his symptoms are all genuine but are not due to that afternoon’s playing of music.”
“My view from the start has been that with the exception of hyperacusis, which is described as a primary symptom of socalled acoustic shock, Mr Goldscheider’s symptoms are all primary symptoms of and explained by only one of the possible diagnoses raised and that is Meniere’s syndrome or endolymphatic hydrops. Meniere’s sufferers when symptomatic find loud, or even slightly loud, noise uncomfortable distortion; and overrecruitment i.e. louder sounds appear even louder to a normally hearing subject. Given the devastating effect of this condition on his career and that he, not unreasonably although wrongly, attributes the symptoms to loud noise, it is not surprising that Mr Goldscheider has gone on to develop hyperacusis which commonly accompanies bothersome tinnitus. In my view there is no causal connection between the rehearsal that day and his symptoms and it is not surprising that they developed during a rehearsal in a professional musician, so could a cold. The real point is that if this were the cause he should have had symptoms long ago. … There is no good evidence that this syndrome [AS] exists. If it does then it is not the cause of Mr Goldscheider’s problems for several reasons: • It cannot be the cause of some of his symptoms; • The rehearsal noise is very far from that claimed to cause AS; • AS allegedly does not require a very high noise level; hence • It would have occurred in earlier rehearsals; • Later noise would have cause the symptoms anyway. … Meniere’s syndrome This is usually unilateral or at least asymmetric initially and is characterised by an initially fluctuating low frequency loss with a later permanent loss often involving the high frequencies more, tinnitus, imbalance usually with true rotary vertigo and a feeling of pressure in the ear, the hearing is often distorted and loud sound may be more uncomfortable than before. Meniere’s is not due to the noise exposure but arising at that time could cause the sound of the music to be much more uncomfortable than it would otherwise have been. …”
“Criteria for diagnosis of Meniere’s disease Definite MD: A two or more spontaneous episodes of vertigo, each lasting 20 minutes to 12 hours. B audiometrically documented low-to medium-frequency sensorineural hearing loss in one ear, defining the effected ear on at least one occasion before, during or after one of the episodes of vertigo. C fluctuating aural symptoms (hearing, tinnitus or fullness, in the affected ear). D not better accounted for by another vestibular diagnosis. … Probable MD A two or more episodes of vertigo or dizziness, each lasting 20 minutes to 24 hours. B audiometrically documented low-to medium- frequency sensorineural hearing loss in one ear, defining the effected ear on at least one occasion before, during or after one of the episodes of vertigo. C fluctuating aural symptoms (hearing, tinnitus or fullness, in the affected ear). D not better accounted for by another vestibular diagnosis.”
“76. …if the workplace is unsafe, then the burden shifts to the employer to show that it was not reasonably practicable to make and keep it safe… … 78. …The standard of reasonableness expressed in the qualification ‘so far as is reasonably practicable’ (in respect of which the onus of proof is on the employer) makes it more, rather than less, likely in my view that the concept of safety is itself to be judged, as Lord Upjohn thought obvious in Nimmo, by reference to what would, according to the knowledge and standards of the relevant time, have been regarded as safe... … 80. In summary, safety must, in my view, be judged according to the general knowledge and standards of the times. The onus is on the employee to show that the workplace was unsafe in this basic sense. (iv) Reasonably practicable 81. Since it took the view that safety is absolute and unchanging, the Court of Appeal had to consider whether the qualification ‘so far as is reasonably practicable’ enabled the employers to exonerate themselves by showing that reasonable employers would not have considered that there was cause to reduce noise exposure in the workplace below 90dB(A). The Court of Appeal held that the qualification gave no scope for such a defence. … 82. … Even the Court of Appeal in its formulation acknowledged the quantum of risk involved as material in the balancing exercise. But this can only mean that some degree of risk may be acceptable, and what degree can only depend on current standards. The criteria relevant to reasonable practicability must on any view very largely reflect the criteria relevant to satisfaction of the common law duty to take care. Both require consideration of the nature, gravity and imminence of the risk and its consequences, as well as of the nature and proportionality of the steps by which it might be addressed, and a balancing of the one against the other. Respectable general practice is no more than a factor, having more or less weight according to the circumstances, which may, on any view at common law, guide the court when performing this balancing exercise... 83. That the qualification ‘so far as may be reasonably practicable’ may, if necessary, receive a broad interpretation is also indicated by the reasoning of the House in Marshall v Gotham Co Ltd[1954] AC 360 .Under the Metalliferous Mines General Regulations 1938 (SR & O No 630) the roof and sides of every travelling road in a mine were required to be made secure. An employee was killed by a fall of roof, due to the presence of an unusual geological condition known as ‘slickenside’, which there was no known means of detecting prior to a fall. It was argued that the mine-owner could have propped all roofs, and that ‘reasonably practicable’ meant no more than ‘practicable’ (p 364). The argument was rejected. Lord Oaksey at p 370 agreed with Jenkins LJ’s statement, [1953] 1 WB 167, 179, that what ‘is “reasonably practicable” in this context is no more nor less than what is capable of being done to make roofs and sides secure within the limits of what it is reasonable to do; and it cannot be reasonable to do for this purpose anything more than that which it appears necessary and sufficient to do according to the best assessment of what is necessary and sufficient that can be made at the relevant time, that is, in the present instance a point of time immediately prior to the accident’. Lord Reid at p 373 said that ‘if a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable’ and took into account that the danger was a very rare one, that the trouble and expense involved in the use of the precautions, while not prohibitive, would have been considerable, that the precautions would not have afforded anything like complete protection against the danger, and that their adoption would have had the disadvantage of giving a false sense of security. Lord Keith considered at p 378 that there was ‘no general rule or test that can safely be relied on for measuring the discharge of such a duty’, but that he ‘could not, as at present advised, accept … that the measure of an employer’s liability can satisfactorily be determined by having regard solely to the proportion which the risk to be apprehended bears to the sacrifice in money, time or trouble involved in meeting the risk’. Lord Tucker (with whom Lord Cohen agreed at p 377) said at pp 374-375 ‘that the word “secure” does not involve security from the effects of earthquake or an atom bomb’, but added that ‘it must include security from all the known geological hazards inherent in mining operations’. At p 376 he echoed the list of factors which Lord Reid had identified in support of his conclusion that the precautions were not reasonably practicable. 84. A further aspect of para 84 in Smith LJ’s judgment is the suggestion that ‘there must be at least a substantial disproportion’ before the desirability of taking precautions can be outweighed by other considerations. This theme was developed in paras 82 to 84 of her judgment, on the basis of dicta in two cases prior to Marshall v Gotham. But it represents, in my view, an unjustified gloss on statutory wording which requires the employer simply to show that he did all that was reasonably practicable.”
“39. In relation to his comment in paragraph 32 about the burden of proof in relation to what is reasonably practicable, it may be that there is, and needs to be, no fixed allocation of the burden. It will depend on what has happened and the situation in which it has happened. 40. There will be some cases in which it is open to, and arguably incumbent on, the claimant to say what ought to have been done by the defendant and why. There will be others in which the event itself calls for an explanation by the defendant of why it was not reasonably practicable to have guarded against it. In both kinds of case it will then be for the defendant to show why it was not reasonably practicable to take the step in question. In many cases the burden will shift as the evidence unfolds. 41. In other words, the reason why there is no formal legal allocation of the burden of proof may well be that judges and practitioners recognise that reasonable practicability is a protean concept which has to be addressed case by case.”
“In the end, there has been no option other than the use of hearing protection despite the large amount of time and money spent on alternative solutions.”
“The Court should recognise the great cultural value which the defendant’s endeavours have to society and consider this value as being of importance when setting the standard which the defendant should reasonably meet. Some of those most invested in the defendant’s endeavours are the musicians. They are partners and stakeholders with the defendant in the pursuit of the highest possible standards, motivated by such concerns as much as the defendant itself. It would be perverse if the imposition of unrealistic standards jeopardised the very enterprise which gives such meaning and satisfaction to the lives of the employees which the standards seek to protect.”
“The Regulations do not require that hearing protection be worn whenever an employee is likely to be exposed to noise over the UEAV of 85 dB(A)Lepd. Rather Regulation 7(3) states that in the circumstances the employer ‘shall ensure sofar as is reasonably practicable that no employee enters that area unless that employee is wearing personal hearing protectors’.”
“In any event any failure to put up a sign is a wholly sterile allegation with no possible bearing on the Claimant’s injuries. The Defendant complied with a causatively relevant duty in relation to hearing protection under regulation 7(3), and in any event the Claimant did in fact wear hearing protection at all material times.”
“Our recommendation always was that our musicians should wear their hearing protection for the fullest possible time that they could be exposed to loud music.” “I know that throughout my career, once I had been trained, the advice that I always gave was that you need to wear your protection for the full duration of the time you are exposed to potentially harmful noise.”
“In those 1-2-1 conversations, I would always say that the reason we were trying to encourage 9s was that they fit the ear better and that we want you to try and wear them all the time rather than taking them out.” “Did you give that message to the claimant? …Yes, I am absolutely sure I would have given that message to him, as I did with the other players in their 1-2-1s.”
“These Regulations shall have effect with a view to protecting persons against a risk to their health and safety arising from exposure to noise at work.”
“…if the workplace is unsafe, then the burden shifts to the employer to show that it was not reasonably practicable to make and keep it safe.”
“80. You should not consider the exposure limit values to be a target for your noise control programme – remember that regulations 6(1) and 6(2) require you to reduce risks and exposures to as low a level as is reasonably practicable.”
“Single vs. double ranking the brass: ideally the trumpets and trombones should be in a straight line as it is preferable to have more space in front; if there is limited space (and if risers permit it) a curved line can help to increase lateral space. On the other hand if there is too much space the brass ensemble suffers and it increases the number of string players in the firing line.”
“For shows where the average noise exposure is over 85 dB you should wear hearing protection for the whole of the session…”