Control of workplace noise
The Court of Appeal has recently given judgment in a case concerning hearing impairment suffered by an employee, caused by workplace noise. The case – Royal Opera House Covent Garden Foundation v Goldscheider (2019) – dealt with excessive noise at the Royal Opera House and considered the application of the Control of Noise Regulations 2005 and the Compensation Act 2006 to professional musicians.
The facts, in summary, were that the design of the opera house required the orchestra to play in a pit, below and part overhung by the stage. The 2012-13 opera season included Wagner’s Ring Cycle in which 90 players occupied the pit and viola players were positioned directly in front of the brass section. G, a viola player, used 28 dB earplugs but the lack of space and the proximity of the trumpets to G’s ears meant that the noise was excruciatingly loud and painful. Following complaints from the viola players, noise levels were recorded at 91 dB. The statutory upper occupational exposure limit was 85 dB.
By the end of three days of rehearsals, G had suffered injury to his hearing which resulted in the end of his professional career. The injury which he suffered was acoustic shock, which caused him to suffer from hypersensitive hearing and tinnitus. Following G’s departure, at a subsequent rehearsal the orchestra was rearranged to provide a one-metre space between the violas and the brass section. The brass section was split up and the noise level was recorded as 83 dB. The opera house had been aware of its duties under the Control of Noise Regulations 2005 and had provided personal hearing protection in the form of 9 dB and 28dB earplugs. The earplugs made it difficult for musicians to hear each other and the conductor. Because of this, musicians had been told to wear them at their discretion. G claimed compensation from the opera house. At first instance his claim succeeded. The High Court found that the opera house had not carried out an adequate risk assessment relating to noise in rehearsals and did not take measures to reduce exposure to it. However laudable the aim to maintain the highest artistic standards it could not compromise the standard of care which an employer has to protect the health and safety of its employees at their workplace. Further, an opera house should be treated no differently from a factory. The opera house had simply not done enough to protect G from the effects of noise, despite expensive and wide-ranging efforts to comply with the 2005 Regulations.
The opera house appealed to the Court of Appeal and made the following points:
The judge at first instance had been wrong not to accept its evidence that it had taken all reasonably practicable steps to reduce the risk of noise exposure.
Under the Compensation Act 2006 the deterrent effect of liability for breach of statutory duty might discourage a desirable activity.
The judge had failed to properly determine causation.
The Court of Appeal dismissed the appeal. It found the following:
The critical issue in relation to liability under the 2005 regulations was whether the opera house had reduced exposure to as low a level as was reasonably practicable. In particular, whether it had taken all reasonable steps to reduce it below 85 dB.
The most damning evidence was the comparison between the noise measurement of 92 dB at the first rehearsal and 83 dB at the later one. The opera house claimed that the reduction was because the conductor had been rehearsing quieter sections and it was a stop/start rehearsal. It had brought no detailed evidence in support of that claim.
The reconfiguration of the pit had not caused any reduction in the artistic standard of public performances.
Alterations made after workplace accidents do not necessarily result in retrospective liability, but they make it difficult for defendants to prove that all reasonably practicable steps have been taken.
In relation to the Compensation Act 2006, if the evidence had shown that nothing more could have been done to reduce noise without the opera house having to abandon the Wagner repertoire, the Act might have applied, but that was not the situation.
In relation to foreseeability, it was nor foreseen that exposure to noise levels of 92 dB would cause sudden injury, that was irrelevant. The 2005 noise regulations had been enacted to protect workers from the risk of injury to hearing caused by excessive noise at work.
The orchestra pit should have been designated a Hearing Protection Zone and an appropriate sign should have been displayed.
In relation to causation, G had established the risk of excessive exposure to noise inherent in the activity which he was carrying out at the rehearsal. The opera house could have shown that the breach of the 2005 regulations had not caused the injury, but it had failed to do so.
The Court of Appeal made the point that the judgment should not be interpreted as meaning that professional musicians should wear personal protective equipment at all times, but only, with the benefit of specific guidance and education, at those times where risk of injury exists. For most musical venues space was not the problem which it was at the Royal Opera House. Even there, a comparatively small repositioning of the layout of the orchestra pit gave a marked reduction in the sound pressure.