A musician has been successful at the High Court in claiming damages for acoustic shock, onset by occupational exposure to noise. Goldscheider v the Royal Opera House Covent Garden Foundation  EWHC 687 (QB) is the first instance of success for a musician bringing a claim of this type.[i] However, Nicola Davies J, in handing down judgment, said it is ‘not uncommon’ for musicians to complain about noise levels and employers have attempted to take precautionary measures to reduce claims associated with hearing loss.
The claimant, a professional orchestral voila player, suffered aural damage during a rehearsal of Wagner’s Ring Cycle at the Opera House, on 1 September 2012. During a rehearsal session, he was positioned in front of 18 to 20 brass instrument players. Although the claimant had played in orchestras throughout his professional life:
‘... the sensation from so many brass instruments playing directly behind him, in a confined area, at the same time at different frequencies and volumes, created a wall of sound which was completely different to anything he had previously experienced.
The lack of space and the proximity of the trumpets to the claimant’s ears meant that he was in the brass section’s ‘direct line of fire’. It was excruciatingly loud and painful. His right ear was particularly painful because the principal trumpet was directed at that side of his head’.
The injury suffered ‘prevented his return to music’. Subsequently, the claimant brought a claim against his employer, the ROH, on the grounds that it had breached its obligations to protect its employees under common law, the Control of Noise at Work Regulations 2005 and other regulations. He claimed to have been exposed to a maximum daily dose of 87 dB(A) and/or a maximum peak sound pressure level of 140 dB(C).
WHAT IS ACOUSTIC SHOCK?
The judge described acoustic shock as ‘an index exposure to any sound or cluster of sounds of short duration but at a high intensity reflects and is consistent with the evidence of the claimant as to the playing of the principal trumpet at or close to his right ear’. It is a ‘relatively new and thus far primarily associated with reports emanating from call centres’. In edition 109 of BC Disease News (here), we examined whether acoustic shock could be directly caused by unexpected noise exposure.
As a result of the ‘newness’ of the condition, ‘Mr Jones, the defendant’s expert who retired from clinical practice some five and a half years ago, was dismissive of the concept’.
Irrespective of this, the judge did not ‘regard the absence of reported cases of acoustic shock amongst professional musicians as being determinative on this issue of causation. Medical learning and knowledge is an evolving concept.
The injury was consistent with the fact that ‘the sound or sounds would have been unexpected because the claimant had only his own musical part in front of him, the trumpet player had his own part’.
COULD THE DEFENDANT BE EXPECTED TO TAKE PREVENTATIVE ACTION FOR ACOUSTIC SHOCK?
Until Goldscheider, there had never been a case of acoustic shock brought by a music industry employee. As such, the ‘extensive available guidance’ did not recognise the risk of acoustic shock.
Davies J, at paragraph 170, explained the defendant’s position, namely that it ‘should reasonably have been governed by the risk of established conditions, namely noise-induced hearing loss, associated with long term exposure, or the risk of acoustic trauma, associated with a peak exposure in excess of 135 dB(C)’.
She went on to explain the position of the defendant, that:
‘Exposure at 90 dB(A)Lepd on a daily basis would only be expected to cause a small amount of noise-induced hearing loss after a period of ten years. There was no foreseeable risk of injury posed by such a level of exposure in the context of a single day's rehearsal, particularly when hearing protection was worn’.
In any event, the claimant had been fitted with ‘custom-moulded earplugs’, shortly after joining the ROH, in 2002. Additional foam earplugs, providing enhanced protection, were provided at the entrance to the orchestra pit.
However, finding in favour of the claimant, Davies J concluded, at paragraph 229:
‘I am satisfied that the noise levels at the afternoon rehearsal on 1 September 2012 were within the range identified as causing acoustic shock. The index exposure was the playing of the principal trumpet in the right ear of the claimant whether it was one sound or a cluster of sounds of short duration. It was that exposure which resulted in the claimant sustaining acoustic shock which led to the injury which he sustained and the symptoms which have developed, from which he continues to suffer’.
The full text judgment can be accessed here.
In next week’s feature article, we will look at the ratio of the judge in greater detail, on breach and causation, and consider the potential impact of the decision, which we understand may be appealed.
[i] Nick Hilborne, ‘High Court: Viola player can claim damages for “acoustic shock”’ (3 April 2018 Litigation Futures) <https://www.litigationfutures.com/news/high-court-viola-player-can-claim-damages-for-acoustic-shock> accessed 5 April 2018.