Goldscheider v The Royal Opera House Covent Garden Foundation

The Control of Noise at Work Regulations 2005 protect employees against foreseeable personal injury caused by workplace noise, not only conventional noise-induced hearing loss. Where exposure is likely to exceed an upper exposure action value, an employer must identify the relevant area as a Hearing Protection Zone, provide appropriate signage and give instructions consistent with the mandatory protection requirements. The duties to eliminate or reduce noise require consideration of organisational and technical measures; reliance on personal hearing protection alone is insufficient for regulation 6(2). Artistic or operational objectives cannot compromise statutory health and safety duties. A risk assessment must address the level, type and duration of exposure, including peak sound pressure, and must be suitable for the actual work and configuration. On the evidence, breaches of regulations 5, 6, 7 and 10 caused acoustic shock.

The claimant was a professional viola player employed in the orchestra at the Royal Opera House. During a rehearsal of Wagner’s Die Walküre on 1 September 2012, he sat immediately in front of the brass section in a cramped orchestra pit and was exposed to high noise levels. He alleged acoustic shock, hearing loss, hyperacusis, tinnitus and balance symptoms.

The trial concerned preliminary issues of breach of duty and causation. The claimant relied principally on the Control of Noise at Work Regulations 2005, together with common-law duties. The defendant relied on its risk-assessment, noise-reduction and hearing-protection measures, and disputed both breach and medical causation. The central questions were whether the Regulations had been breached and whether those breaches caused the claimant’s injury.

1. Judgment for the claimant. The defendant was in breach of regulations 5, 6, 7 and 10 of the Control of Noise at Work Regulations 2005. The claimant’s injury was caused by the excessive noise exposure. Damages were to be assessed.
2. The Regulations protect against foreseeable personal injury arising from workplace noise. The risk is not confined to long-term sensorineural noise-induced hearing loss. The primary obligation under regulations 6(1) and 6(2) is to eliminate noise risk at source or reduce it as far as reasonably practicable by appropriate organisational and technical measures. Personal hearing protection cannot be the only measure relied upon under regulation 6(2).
3. The risk assessment was not suitable or sufficient. It did not properly address the level, type and duration of exposure, including peak sound pressure, and was prepared for the production without adequate consideration of rehearsals and repeated loud passages. Given the new orchestral configuration and the expectation that the upper exposure action value would be exceeded, the defendant should have monitored noise at the first rehearsal and at the first rehearsal of different parts of the cycle.
4. Because employees were likely to be exposed to noise at or above the upper exposure action value, regulation 7(3)(a) and (b) required the orchestra pit to be designated, demarcated and identified by signage as a Hearing Protection Zone. Those duties were expressed in mandatory terms and were not qualified by reasonable practicability. The final requirement concerning entry while wearing protection was qualified only so far as reasonably practicable. The defendant’s practice of leaving protection to individual musicians’ discretion did not meet the statutory standard.
5. The failure to implement regulation 7(3) also meant that the information, instruction and training under regulation 10 were inadequate. Advice that musicians “should” wear protection, coupled with individual discretion, did not communicate the mandatory nature of protection in the relevant zone. The defendant’s artistic aims and the operational difficulties of the pit could not compromise its statutory duty to protect employees.
6. The evidence established a clear factual and causal link between the breaches, the high noise levels and the claimant’s acoustic shock. The exposure was consistent with an unexpected short-duration cluster of intense sounds from the principal trumpet. The alternative diagnosis of Ménière’s disease was rejected. Although the claimant should have left the rehearsal once it became clear that the noise remained excessive, the injury had probably already occurred and his failure to leave did not contribute to it.

This was a first-instance decision. On 11 November 2016 Master McCloud directed a trial of the preliminary issues of breach of duty and causation.