Orchestral related hearing loss

In April the Court of Appeal found in favour of a viola player claiming compensation for hearing loss against the Royal Opera House. The claim was unusual, in that it involved a sudden onset injury known as “acoustic shock”, rather than gradual hearing damage over a period of time.  However, there were important findings of general relevance across the entertainment industry.

The High Court said “however laudable the aim to maintain the highest artistic standards it cannot compromise the standard of care which the ROH as an employer has to protect the health & safety of its employees”. This included complying with the Control of Noise at Work Regulations 2005 in particular reg 7(3) which required the orchestra pit to be designated as a “hearing protection zone”.  However, the Court of Appeal accepted the artistic requirements of the work (in this case Wagner’s Ring cycle) meant it was not “reasonably practicable” to require musicians to wear hearing protection at all times, as this would impede the quality of their performance

The case was eventually won under Reg 6, which requires noise exposure to be eliminated at source, subject to “reasonably practicability”. There was “damning” evidence that noise exposure to the viola players could have been reduced by simply positioning them further from the brass section. This should have been identified in the risk assessment under Reg 5.  Instead the risk assessment did not reflect the actual orchestra layout or include the expected noise exposure levels.

Traditionally noise induced hearing loss has been associated with heavy industry. However, the 2005 Regulations have applied to the music and entertainment industry since April 2008.

Employers should always remember the primary duty is to eliminate noise at source where possible. They should review their noise risk assessments and check them against the requirements of Reg 5. Accurate exposure data is essential.  Sophisticated monitoring technology is available, such as earplugs containing miniature microphones. Employers must ensure correct usage under Reg 8 - recently IOSH referred to a study of 100 offshore workers in which three quarters were using their hearing protection incorrectly, much reducing effectiveness.  A proactive approach should reduce claims and absences and increase wellbeing. Compliance advice is available at http://www.hse.gov.uk/noise including a “myth buster” on the music and entertainment sectors.

Andrew Clarke can be contacted at a.clarke@gullands.com