Legal spotlight - August 2018

OCCASIONALLY A court decision is made which appears at first glance fairly narrow in its scope of application but on closer consideration has implications way beyond the obvious. One such case is the recent decision of the High Court earlier this year in Goldscheider -v- The Royal Opera House Covent Garden Foundation.

Mr Goldscheider was a professional viola player in the Royal Opera House (ROH) orchestra. He alleged that during a rehearsal for a Wagner piece in September 2012 he was exposed to noise levels which caused him to suffer "acoustic shock” in his right ear despite wearing earplugs with 25dB attenuation provided by ROH. He continues to suffer from injury, which has prevented him returning to music.

Acoustic shock is usually brought on by sudden unexpected exposure to loud noise.  Symptoms can be short lived or last for a considerable time causing significant disability. Whilst ears can be exposed to short periods of sound in excess of 120 decibels without permanent hearing harm, long term exposure to sound levels over 80 decibels can cause permanent hearing loss.

Although Mr Goldscheider alleged that he had been exposed to short bursts of sound levels in excess of 130 decibels, the court accepted evidence from his medical expert that exposure at a range of 82 - 120 decibels was sufficient to cause acoustic shock and that on the afternoon of the rehearsal noise levels were "within the range identified as causing acoustic shock".

Hearing protection

ROH provided all musicians with hearing protection, but their use was discretionary, with some musicians refusing to wear them, maintaining the protectors could dull their ability to properly play and respond to the other members of the orchestra, compromising their performance.

The Health and Safety at Work etc Act 1974 provides that employers are under a duty to protect the health, safety and welfare of their employees as well as others who might be affected by their business and that they must do whatever is reasonably practicable to achieve this. This duty is supplemented by regulations, some of which are more general in application, for example the Management of Health and Safety at Work Regulations 1999 and some of which more specific, such as the Control of Noise at Work Regulations 2005 ("the 2005 Regulations"), which describes what employers must do to protect the hearing of their employees. The 2005 Regulations include, briefly, duties to undertake effective risk assessments to identify noise levels at work and, where those levels exceed 80 decibels to reduce noise at its source, provide suitable hearing protection (as a last resort) and ensure that employees understand and are properly trained about noise risk and the need to wear protection properly. In some circumstances the wearing of hearing protection in certain areas must be designated as mandatory.

The court determined that ROH had failed in its statutory duty under the 2005 Regulations; noise levels in the cramped orchestra pit were such that it should have been clearly designated a hearing protection zone, where the wearing of hearing protection was mandatory at all times. ROH's risk assessment was inadequate and even where concerns were raised by musicians, it failed to act.  

ROH's defence that it had done everything reasonably practicable failed, as did its assertion that Mr Goldscheider had been contributorily negligent – by the time he should have left the rehearsal the damage had already been done.

The decision has caused concern for orchestras and other live music offerings but has implications for others too; the court's dismissal of the ROH's defence that it simply was not practicable to ensure the wearing of personal protective equipment highlights the fact that the test of reasonable practicability can be onerous and marks a further shift in increasing responsibility on employers.  How far this shift will go remains to be seen but it furthers a trend of mounting pressure on employers, seen most starkly in recent hefty fines for breach of health and safety obligations. The message is clear; health and safety must be a priority for every organisation; compliance cannot be merely a paper exercise and nor does one size fit all. Risk assessments must be tailored to the particular circumstances, fully supported and involve proper training and communication.  Moreover, where workers raise concerns, these must be taken seriously and, where appropriate, further risk assessments and risk reduction measures taken, without delay.

Kevin Bridges is a partner and head of health and safety at Pinsent Masons. For more information, visit www.pinsentmasons.com