Published: 23 May 2018
Play it again, Sam! Lessons learned from Goldscheider v Royal Opera House ‘hearing loss’ incident
Until March 2018, orchestras had not been held liable for any injuries players sustained when declining to use protective equipment. This is changing, and orchestras must now consider the possible implications of hearing loss in musicians.
In 2017, Chris Goldscheider, a former violinist at the Royal Opera House (ROH), brought a suit against his employer, claiming that he suffered from “acoustic shock” in the right ear, onset by occupational exposure to noise whilst the orchestra rehearsed Die Walküre in September 2012.
In this landmark case, the High Court ruled that the Royal Opera House had breached its statutory duty under the Control of Noise at Work Regulations 2005 and found it liable for Mr Goldscheider’s injury.
The judge, Justice Nicola Davies ruled that there was no difference between a factory and an Opera House, and that “artistic value” was not relevant when it came to protecting employees’ hearing.
In particular; the Judge found that:
- The risk assessment did not comply with Regulation 5 as it did not consider the level, type and duration of exposure to noise.
- Simply providing hearing protection and advising or encouraging its use was not sufficient. Regulation 7 states if the noise level is over the prescribed upper exposure action value ie: over 85db; then hearing protection must be worn if it is provided.
- ROH’s failure to direct the orchestra to play more quietly was a failure to eliminate or reduce the risk at its source as required by regulation 6(1).
- A hearing policy which focused on providing hearing protection and encouraging the use of the protection did not discharge the employer’s duty under regulation 6(2) to reduce the employee’s noise exposure to as low as reasonably practicable by appropriate means other than hearing protection; for example, creating space between musicians.
- In an environment where the noise level is likely to reach or exceed the prescribed upper exposure action value, an area must be designated as a hearing protection zone and be identified as such as set out in Regulation 7(3). ROH did not do so.
Would the employer’s duty have been any different if the incident had occurred after the Enterprise and Regulatory Reform Act 2013 came into force?
The incident in question occurred in 2012 when breach of the Control of Noise at Work Regulations 2005 still provided for a civil claim in damages. On 1 October 2013, Section 69 of the Enterprise and Regulatory Reform Act came into force for accidents that occur on or after that date. But what does this mean?
- No civil claim can be brought for a breach of a health and safety statutory duty from that date (note these changes do not apply to claims by new and expectant mothers).
- From 1 October 2013 the duty imposed is that of common law duty of care.
- Regulations which incorporate a defence of reasonable practicability (as is the case with Noise at Work Regulations) will now require the employee to demonstrate that an employer’s standard of care fell below that of a reasonable and prudent employer.
- However, whilst defending the amendment to the Act in the House of Lords on 22 April 2013 it was stated “The codified framework of requirements, responsibilities and duties placed on employers to protect their employees from harm are unchanged, and will remain relevant as evidence of the standards expected of employers in future claims for negligence”. This implies that although the common law duty of care applies from 1 October 2013, the Court should have regard to the regulations when considering the employer’s actions in any compensation civil claim.
There is arguably now no evidential duty on the employer to show that it had done all that was reasonably practicable. However, there is still a duty of care. An employer who does not, for example, designate an area as a hearing protection zone and therefore fails to warn employees of the need to wear hearing protection, is still going to be negligent.
What if employees still don’t wear hearing protection?
Prior to the Enterprise Act, the employer was likely to be found in breach of the regulations as it was plausible that reasonably practicable steps could have been taken to ensure that hearing protection was used (i.e. having a supervisor walk around the area).
However, now there may be more room to argue that the employer had discharged the duty of care by informing and training the employee of the need to wear hearing protection.
If an employer was aware of their employees not wearing hearing protection, they still have a duty to reprimand them.
At the time of writing, there has been no authoritative case law that explores if, or how, the duty of employers to protect their employees’ hearing has changed since the Act came into force.
Therefore, despite breaches of the regulations no longer providing for a civil claim in damages, in cases where noise exposure occurred after 1 October 2013, the Goldscheider case is still likely to impact the music industry, whether they were exposed before 1 October 2013 or since.