Acoustic Shock: An Update

In this week’s feature article, we provide a comprehensive overview of ‘acoustic shock injury', which we previously discussed in edition 109 of BC Disease News (here) and following the widely reported case of Goldscheider v the Royal Opera House Covent Garden Foundation [2018] EWHC 687 (QB) which we briefly examined in last week’s edition (here). We now analyse the ratio on breach of duty and causation in greater detail, before going on to consider the contextual significance and future implications of the High Court’s ruling against the Royal Opera House.

WHAT IS ACOUSTIC SHOCK?

The Condition

Acoustic shock injury’ is a term that has been used to describe instances of exposure to sudden, loud, shocking or startling noises, usually in one ear, which may subsequently develop into symptoms, such as:

  • headache;
  • tinnitus;
  • ear pain;
  • nausea;
  • a sensation of numbness, pain or burning in the head, neck, jaw, shoulder or arm on the affected side;
  • a hollow feeling or fluttering in the ear;
  • vertigo;
  • poor balance;
  • anxiety;
  • hypersensitivity to sound (hyperacusis);
  • fatigue; and
  • serious depression.[i]

Acoustic shock’ is not to be mistaken with ‘acoustic trauma’, by which the hair cells of the inner ear are damaged, either by exposure to loud noise over a long period of time, or by an extremely high intensity sound, typically greater than 120 dB. The sound levels associated with ‘acoustic shock’ are lower than those required to cause ‘acoustic trauma’. ‘Acoustic shock’ can also be differentiated from long-term exposure to noise, above 85 dB, post-Noise at Work Regulations 1989, which may amount to a positive finding of NIHL, as a consequence of cochlear damage.

Many institutions have attempted to define ‘acoustic shock’ in the past:

International Telecommunications Union European Transmission Standards Institute (1998)

  • ‘Any temporary or permanent disturbance of the functioning of the ear, or of the nervous system, which may be caused to the user of a telephone earphone by a sudden sharp rise in the acoustic pressure produced by it’.

HSE Position Paper (2008)

  • ‘A term used in connection with incidents involving exposure to short duration, high frequency, high intensity sounds through a telephone headset’.
  • The Paper goes on to state that exposure to acoustic events is not sufficient to cause hearing damage as assessed by conventional methods.          

Health Services Australia Group

  • ‘Acoustic shock refers to the combination of exposure to a brief, sudden, unexpected, high frequency, high intensity sound emitted (the stimulus) and the subsequent symptoms (the response) which can develop’.
  • ‘Acoustic incident refers to a sudden, unexpected, high-pitched sound of high intensity…’ It is generally accepted that these ‘acoustic incidents’ are unexpected and randomly occurring with a high frequency at between 2.3 kHz and 3.4 kHz and with intensities varying between 82 dB to 120 dB of varying durations.

Affected Industries

In edition 109, our feature article focused on the risk of ‘acoustic shock’ in call centres. Since 1991, major manufacturers have incorporated an acoustic limiter in the electronics of their headsets to meet the requirements of the Department of Trade and Industry (DTI)specification 85/013.

In the UK, limiters ensure that any type of noise above 118 dB is not transmitted through the headset. However, this can increase ‘central auditory gain’, which may render operatives more susceptible to ‘acoustic shock’. Some manufacturers are now bringing 'acoustic shock protection' and 'headset noise limiter' devices to the PPE market.

In November of 2004, the Call Centre Management Association released a press statement indicating that 300,000 call centre workers may be victims of ‘acoustic shock syndrome’.

Medical Research

Medical consensus on ‘acoustic shock syndrome’ has not yet been reached, since this is still a new and developing area of research, with few studies. The term is no more than a description of a constellation of symptoms, many of which appear to be ill-defined and unrelated, and with no (as yet) physiological link with exposure.

The concept of ‘acoustic shock’ was introduced by Milhinch, in 2002. His research identified 103 call centre operators who reported unexpected high-pitched sounds[ii].  The study sought to provide evidence of injury following acoustic incidents, most likely due a neurophysiological phenomenon, with some psychological cause. Results showed it was possible that psychophysical responses were heightened in individuals with pre-existing high levels of stress.

Milhinch went on to report that ‘acoustic incidents’ capable of triggering ‘acoustic shock injury’ are typically brief and are frequently measured at the intensity and frequency ranges specified by the Health Services Australia Group (above).

Elsewhere, in a Danish study, published in 2015, sounds capable of causing ‘acoustic shock’ were identified between 100 Hz and 3.8 kHz, with intensities varying from 56 dB to 100 dB. Nevertheless, the proximity of the sound to the ear is a common factor to onset the condition[iii].

In 2007, a British paper by McFerran and Baguley identified ‘acoustic shock’ as, ‘a recently recognized clinical entity’.[iv] 

However, other sources have suggested that symptoms are largely psychological. A 2003 report by Lawton, at the University of Southampton, produced information on symptoms experienced by 18 call centre workers, who were bringing personal injury claims. The report concluded that claims for ‘acoustic shock’ concentrated on symptoms, such as tinnitus and emotional response[v]. Whereas, pain, lightheadedness and numbness, all of which may start after the ‘shock’ incident, were not associated with neurological deficit. 

In a study, carried out by Parker and colleagues in 2014, the medical notes and occupational health records of 30 ‘acoustic shock’sufferers’ were examined:

  • 90% had tinnitus;
  • 70% had previous oto-pathology;
  • 63% had psychopathology; and
  • 17% had head injuries.

It was again concluded that hearing loss was not necessarily a feature of 'acoustic shock syndrome'. There is often little clinical evidence of pathology[vi]

In the same year, Hooper identified cases of pseudohypacusis (exaggerated or false hearing loss) and suggested that ‘acoustic shock syndrome’ is predominantly psychogenic, due to:

  • the variation in the nature of the acoustic incident involved;
  • the presence of noise-limiting technology in the workplace;
  • the marked variation in time of symptom onset (following the incident); and
  • the clusters of cases occurring in the same call centre[vii].

It has been suggested that the physiological basis of 'acoustic shock injury' could be excessive contraction of the muscles of the middle ear[viii].  Symptoms of ‘acoustic shock’ may be instigated by tonic tensor tympani syndrome: the initial response after an ‘acoustic incident’ is thought to be an exaggerated startle response with contraction of the tensor tympani muscle.  Continued contraction of the tensor timpani muscle could generate many of the symptoms consistent with ‘acoustic shock’. McFerren, in a 2015 article, argued that, even though this model has many proponents, there is no robust scientific support thus far[ix]

Most recently, in a case study from 2017, in which the patient’s middle ear function was assessed, a difference in middle ear function was observed between ears exposed to ‘acoustic shock’ and unexposed ears.  The authors reported:

This study is the first to provide experimental support suggesting that middle ear muscles can behave abnormally after acoustic shock injury’[x]

The study also suggested that middle ear inflammation may contribute towards tinnitus and pain suffered.

‘Acoustic shock’ may gain widespread medically accepted recognition in the future, if testing of otological function can demonstrate a difference between exposed and unexposed ears.

Treatment

In respect of treatment, Westcott reported 4 cases of ‘acoustic shock’, which were treated with sophisticated in-the-ear digital hearing aids, set up to act as electronic filters, compressing all sounds down to the range of conversational speech. The rationale for this approach was that it would protect against dangerous sound levels, while avoiding the risk of overprotection. 3 of the 4 patients treated in this study showed improvement, but is difficult to draw firm conclusions from such a small study.

ACOUSTIC SHOCK’ CASE LAW

Woodings v BT (2003, unreported)

The claimants, in Woodings, were employees of British Telecommunications. It was alleged that they had suffered ‘acoustic shock’ by way of ‘aural exposure to loud and shrill electronic noise’ through the headsets or earpieces worn. Each complained of earache, ‘auditory interference and vertigo’. As a consequence, minor personal injury was suffered.

At the time of this action, 160 similar claims were pending across the UK, 30 of which were pending against the defendants.

All 5 claimants reached settlement with the defendants for sums ranging between £500 and £750, without the defendant’s admission of liability on medical causation.

The judge, who was assessing the basis upon which costs should be assessed, stated that ‘acoustic shock’ claimants were on a ‘litigation frontier’, whereby the ‘capacity [of sudden noise] to cause personal injury ... [is] ... not clearly understood’. He advised that, had the claim been pursued to trial, the case would have been allocated to the multi-track where extensive medical, scientific and technical evidence could be adduced.

Macintosh v Clark (High Court, 2010, unreported)

At the High Court, in Macintosh, HHJ Harris QC ruled on liability in a personal injury claim, pursued by a former secretary of the 1st defendant employer, a firm of solicitors.

The claimant purported to have suffered damage to her hearing on 21 April 2005, when an employee of the 2nd defendant conducted a routine check of the alarm. The alarm was turned on for approximately two seconds. During this short time period, the receptionist, who was situated 8 ft away from the device, transferred a call through to the claimant, who heard the ‘loud noise’ through the telephone.

Consequential injuries included earache and a loss of hearing in the affected ear for two weeks, together with persisting tinnitus. Damages were agreed at £13,500, subject to liability.

Mr Andrew Raymond was jointly instructed as the acoustic expert. This was his first ‘acoustic shock’ case and ‘he knew of no other expert who had written an acoustic shock report’.

In his report, he stated that, given the ‘minimal duration’ of noise exposure:

‘Purely in terms of noise exposure it would seem unlikely that the Claimant could have been expected to have suffered permanent hearing damage in the conventional sense’.

However, Mr Raymond did, in his report, consider that the levels of exposure were high enough to engage symptoms of ‘acoustic shock’, which he described as a ‘temporary phenomenon’, which was ‘not well understood’. Unlike NIHL, which involves exposure to high levels of noise over an extended period of time, the effect of ‘acoustic shock’ is ‘not to cause damage to the hearing system, more a reaction of shock as in fright; the muscles of the middle ear go into spasm’.

Expanding on this definition, he stated that the ‘little known condition’ was ‘almost exclusively a call centre phenomenon through headsets generated by somewhat mysterious and speculative sources within telephone systems’.

As such, he imagined, in his report, that ‘few employers outside of call centres would have any knowledge of acoustic shock. The HSE has little to say on the subject’.

Indeed, the HSE website, when the expert report was written, stated:

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Mr Raymond, as part of his own investigations, listened to the sound of the alarm via the telephone and, although the noise noted was ‘horrible’, he suffered no symptoms.

Further, he did not expect that either Defendant would have known much about the problems associated with 'acoustic shock', while also noting that most people ‘think noise is more damaging than it is’. In addition, neither ENT specialist suggested that the claimant’s injuries were a ‘reasonably foreseeable’ consequence of her brief noise exposure.

HHJ Harris ruled, at paragraph 13:

‘I found no evidence that either defendant did know or should have known that any damage to hearing was to be foreseen in the relevant circumstances’.

Goode v Morgannwg (Cardiff County Court, 2013)

In Goode, the claimant brought a claim for personal injuries sustained during the course of her employment at the NHS Direct Wales call centre. On 14 November 2005, it was alleged that when she pressed the conference call button, to initiate a three way conversation between ambulance control, the patient and herself, a ‘"white noise", or high pitched static’ was heard through her headset, which she wore on her right ear. The headset was removed immediately. Pain commenced 50 minutes after the incident. This persisted for one week. Two months post-incident, head-turning caused dizzy spells.

The claim brought, therefore, was in respect of ‘acoustic shock’, which caused ‘ear pain, ear blockage, hearing loss, tinnitus, nausea and dizziness’.

In this instance, the headset had an acoustic limiter of 112.3 dB and the claimant failed to prove that the headset was defective in emitting in excess of the 118 dB telecommunications limit. Nevertheless, in a report, dated 5 April 2007, 51 incidents had been reported over the course of the previous year, with 28 (54.9%) resulting in symptoms. The causes of acoustic incidents were recorded as ‘feedback from cordless and mobile phones; crying babies; barking dogs; fax tones and the loud voices of distressed callers’.

On medical causation, Dr Clayton, the claimant's ENT medical expert analysed the claimant’s audiogram (2005) after the incident, which showed increased hearing loss at 1 kHz and 8 kHz, but not at noise sensitive frequencies between 3 kHz and 6 kHz. Later, right-sided audiometry (2007 and 2008) revealed hearing loss at 2, 3, 4, 6 and 8 kHz and he could not explain the delayed elevation in right sided high frequency thresholds. Since acoustic trauma is usually immediate in effect, Mr Clayton adjusted his opinion to a ‘probable aetiology of acoustic shock with an element of acoustic trauma’.

Whereas, the defendant’s medical ENT expert, Mr Parker, considered that the claimant had not sustained ‘acoustic shock’, but had instead sustained "acoustic startle", which is not a disease, nor is it caused by injury or damage and which has not produced any long-term symptoms below those lasting a few days’.

The judge weighed up the claimant expert’s evidence to consider the ‘temporal link’ between symptoms and the incident.

Mr Clayton referred to the 2002 Milhinch paper: ‘Acoustic Shock Injury: Real or Imaginary’, as discussed above. Milhinch explained that ‘the primary cause of the injury was an excessive “startle reflex”, initially described as the “tonic tensor tympani phenomenon”, a condition in which it is posited that the tensor tympani muscle is spontaneously active, continually and rhythmically contracting and relaxing’. As a consequence, the stressful nature of ‘acoustic incidents’ is responsible for ‘acoustic shock’.

Mr Clayton also cited the research of Klockoff and Westerberg, which noted that ‘elevated psychic tension seems to be the essential etiologic factor in almost all cases’. Thus, they suggested that ‘more severe and persistent symptoms were experienced in this with repeated acoustic incidents’ and a ‘“conditioned response” was to blame with symptoms persisting from months to years’.

Reviewing the evidence, HHJ Bidder stated that ‘acoustic shock syndrome’ is ‘plainly not experimentally established’. The Milhinch study was not in a peer reviewed journal. However, the defendant’s expert described the condition as having ‘low level evidential value’. The judge identified that he had to ‘consider whether the existence of a medical condition is established on balance of probabilities and not to the extent that scientists would require’. In any event, it was noticeable from the research that persisting hearing loss symptoms were absent from the symptoms of the syndrome.

In making his decision, HHJ Bidder preferred the evidence and conclusions of Mr Parker. He said, at paragraphs 92 and 93:

‘I accept the Claimant was exposed to a loud sudden noise and that for no more than a week following the incident suffered gradually diminishing pain in her left ear which was a normal physiological response (a “startle response”) rather than “acoustic shock” or “acoustic trauma”. On a balance of probabilities I find that the “blocked” sensation, the giddiness, hyperacusis and hearing loss and any pain and other symptoms after the first week following the incident, were unrelated to the incident. I am not satisfied on a balance of probabilities that she has suffered from tinnitus and I do not find that any tinnitus was in any way caused by the incident. Her changing her job was causally unrelated to the incident and she has not suffered any incident related symptoms which have caused any financial loss or disadvantage on the labour market...

I therefore conclude that the Claimant’s claim is for very transient and diminishing ear pain which lasted no more than a week ... I have considered the “Minor Injuries” section in the Judicial College “Guidelines for the Assessment of General Damages in Personal Injury Cases” and I consider that the symptoms would justify an award of general damages of £500’.

THE GOLDSCHEIDER CASE

Facts of the Case

In Goldscheider v the Royal Opera House Covent Garden Foundation [2018] EWHC 687 (QB), the claimant, a professional orchestral voila player, complained of aural damage, following a rehearsal of Wagner’s Ring Cycle at the Opera House (ROH), on 1 September 2012. During the rehearsal session, the viola player was positioned in front of 18 to 20 brass instrument players. The injury suffered ‘prevented his return to music’. He subsequently left the ROH, in July of 2014, after having made real efforts to return to rehearsals and performances in 2013. 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.'

At the High Court, the claimant sought damages for ‘acoustic shock’, onset by occupational exposure to noise. In respect of exposure, it was claimed that:

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’.

In the claimant’s particulars, 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).

Unlike the former case authorities, discussed above, Goldscheider had not been exposed to electronically generated white noise through an earpiece or telephone. Therefore, he was the first known musician to bring a claim of ‘acoustic shock’.[xi]

However, Nicola Davies J, in handing down the High Court judgment, said it is ‘not uncommon’ for musicians to complain about noise levels, as proven by employers’ attempts to reduce hearing loss claims by introducing precautionary measures.

The claimant was provided with custom moulded 9 dB earplugs, in 2002, which were fitted by a specialist in Harley Street, while 28 dB foam earplugs were available to the claimant when necessary. During the rehearsal, the 28 dB earplugs had been ineffective in blocking out the ‘very high’ sound levels of the brass instruments.

Further, the ROH had given the clamant training and education in the potential dangers of excessive noise exposure, since August of 2005, as documented in his personnel file.

The Claim and The Defence

The claimant argued that the defendant had breached its obligations to protect its employees under common law, the Control of Noise at Work Regulations 2005 and other regulations. By contrast, the defendant denied breach submitted that the noise produced by the professional orchestra is not a by-product of its activities, but the raw product.

As such, the orchestra, with integral aesthetic and technical demands, would be unreasonably compromised if it were asked to go beyond reasonably practicable steps already taken. Indeed, after the incident was reported, the ROH devised plans to move the horn section to the opposite side of the pit, ‘an enormous artistic compromise’. What is more, the Royal Opera House was built in the 19th Century and offered less flexibility than other modern venues.

Noise Exposure

At Paragraph 11 of the judgment, the noise levels of the afternoon rehearsal were measured and recorded as:

‘i) The average noise level to which the claimant was exposed during the three hours, 15 minutes and 24 seconds representing the total measuring period was 91.8 dB(A)Leq;

ii) At such a level the "lower EAV" (an eight-hour average of 80 dB(A)Lepd ignoring the effects of personal hearing protectors) was reached within 0.52 hours;

iii) The "upper EAV" (an eight-hour average of 85 dB(A) Lepd ignoring the effects of personal hearing protectors) was reached within 1.6 hours;

iv) The "exposure limit value" (an eight-hour average of 87 dB(A) Lepd taking into the effects of personal hearing protectors worn) would have been reached within 2.64 hours if no personal hearing protectors had been worn’.

The claimant’s first audiogram, performed by the OH advisor at the ROH, revealed ‘significant deterioration in the high frequencies’ in the claimant’s right ear. He was first diagnosed with acoustic trauma.

Appendix of Medical Literature

As was also the case in Goode, the research of Janice Milhinch (2002) was cited in the in the appendix of medical literature in Goldscheider. This, of course, suggested a range of 82 dB to 120 dB sufficient to cause ‘acoustic shock’.

In addition, the Westcott paper (2006), titled ‘Acoustic Shock Injury’, was referred to. We previewed this research in the ‘treatment’ section of this article. In the abstract of the paper, Wescott stressed the risks faced by call centre staff:

‘Call centre staff using a telephone headset or handset are vulnerable to ASI because of the increased likelihood of exposure, close to their ear(s), of sudden unexpected loud sounds randomly transmitted via the telephone line’.

Westcott’s research concluded that:

‘With the rapid growth of call centres around the world, professionals providing tinnitus and hyperacusis therapy are increasingly likely to encounter some or all of the cluster of ASI symptoms in their clients’.

Another source of accepted literature was the McFerran and Baguley paper (2007), which we cited earlier in this article. Here, the authors concluded that ‘acoustic shock’ warranted recognition as a separate condition, as opposed to a subsection of an existing condition.

The appendix of medical literature concluded with the International Journal of Audiology paper: ‘Acoustic Shock: A new occupational disease? Observations from clinical and medico-legal practice’. This was co-written by Mr Parker and weighed up the dearth of medical evidence pre-2014.

Before this, however, the appendix mentions the ‘foremost ENT textbook’, written by Scott-Brown, in which he states that ‘objective hearing loss is rarely a feature of acoustic shock’.

The literature adduced in Goldscheider, therefore, remained consistent within existing case law in conveying, scientifically, that psychological symptoms, stemming from ‘acoustic shock’, are more common than hearing loss. However, since McFerran and Baguley published their paper, ‘acoustic shock’ has no longer been regarded as only affecting call centre workers. This position was adopted by Mr Parker in his later work.

Medical Evidence

At paragraphs 110 to 112, the judge provided a description of ‘acoustic shock’, as follows:

Acoustic shock is the mechanism of injury from which the symptoms flow. The injury involves the inner-ear and comprises cellular and/or biochemical changes. There has to be an acoustic incident, the sudden onset of loud noise for which the person is unprepared. This is followed by an acoustic startle, a vestigial innate response to the threat of potential injury. The nature of acoustic shock injury is a physiological response to noise. The ear is over stimulated, it builds up a stock of toxic metabolites and from a physiological response it can move to the infliction of damage. The threshold varies for each individual. The physical response to damage to the ear can comprise deafness, pain, tinnitus or dizziness or a combination of two or more.

The noise would be loud, generally unexpected but something extra was needed to get under the stapedius reflex and the unprepared central nervous system, often in the presence of an individual with anxiety, psychological issues or stress. The unexpected noise was that of the Principal trumpet, who was playing from different music which the claimant would not have seen. The claimant would not be familiar with the music of the trumpet because he would not know the trumpet part. The bell of the trumpet is loud. In rehearsal, how the playing occurs would depend upon the conductor's interpretation. The claimant would not know when the trumpet was about to get loud. In Mr Parker's opinion what had occurred was an index exposure, a cluster of short duration, high intensity sounds which presented to the inner ear. The claimant had not suffered a dramatic shift which would be apparent on audiometric testing, nor a dramatic disruption of function, it was not a hydrops loss’.

Mr Parker, instructed to act for the claimant, concluded, in his report, that the claimant had suffered ‘acoustic shock’. In doing so, he distinguished the claimant from the ‘psychological overlay’, which had been discussed widely in the scientific literature. Mr Parker, in his evidence, noted noise levels sufficient to cause ‘acoustic shock’ as peak levels of between 90 dB and 130 dB, especially between 120 dB and 130 dB. This represents a slight modification of the Milhinch range.

Mr Jones, instructed to act for the defendant, contested Mr Parker’s analysis of the claimant’s symptoms and initially said, of the 'acoustic shock', that it ‘is basically alleged to occur in unprotected subjects wearing headphones, typically call centre workers, exposed suddenly and unexpectedly to unpleasant and brief loud noise’. After discussions between the ENT experts, Mr Jones arrived at the following determination:

‘In my view there is no causal connection between the rehearsal that day and his symptoms and it is not surprising that they developed during a rehearsal in a professional musician, so could a cold. The real point is that if this were the cause he should have had symptoms long ago.

There is no good evidence that this syndrome [AS] exists. If it does then it is not the cause of Mr Goldscheider's problems for several reasons:

  • It cannot be the cause of some of his symptoms;
  • The rehearsal noise is very far from that claimed to cause AS;
  • AS allegedly does not require a very high noise level; hence
  • It would have occurred in earlier rehearsals;
  • Later noise would have cause the symptoms anyway’.

Consequently, Mr Jones reasoned that the claimant was more likely to have been suffering with idiopathic Meniere’s disease. This was refuted by Mr Parker as the claimant was suffering from unilateral symptoms, where Meniere’s contemplates bilateral symptoms. Further, hearing loss had been diagnosed at high frequencies, where Meniere’s was consistent with medium or low frequency hearing loss. Moreover, the claimant had a vestibular cause, ‘acoustic shock’, where Meniere’s is a residual diagnosis. It was also suggested that the fact another viola player had complained of symptoms meant the claimant’s condition was no coincidence, veering towards ‘acoustic shock’.

Submissions on Alleged Breaches of the 2005 Regulations

The claimant submitted that that there had been breaches of Regulation 5 of the 2005 Regulations, namely that statutory risk assessments had not been properly carried out; Regulation 6, having failed to eliminate the noise at source, or reduce exposure to as low a level as is reasonably practicable; and Regulation 7, having failed to create a hearing protection zone in the pit of the orchestra, with appropriate demarcated signage and mandatory uptake of hearing protection, where the noise levels were likely to reach the upper EAV of 85 dB (A); among various other breaches of statutory provisions.

The defendant argued that compelling the wearing of hearing protection throughout rehearsals would have been ‘impractical’ and dosimetry readings showed noise exposure of just 68 dB to 70 dB, In fact the claimant had worn 25 dB earplugs during the loudest periods of exposure. Counsel for the defendant argued that it had taken:

‘… all reasonably practicable steps to reduce the noise levels, the standards to which the defendant's efforts should be held is one of reasonableness not perfection’.

Additionally, defendant counsel invited the court to consider s.1 of the Compensation Act 2006, to counterbalance the duties prescribed by Regulation 6:

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Claimant counsel contested this, at paragraphs 164 and 165:

‘The defendant has advanced no evidence that artistic values of productions of its operas, specifically those in the Ring Cycle, would in 2012 or now be reduced by steps taken to eliminate or reduce noise exposure from that created by the configuration of musicians in amongst whom the claimant was rehearsing on Saturday 1 September.

The reliance upon "artistic value" implies that statutory health and safety requirements must cede to the needs and wishes of the artistic output of the opera company, its managers and conductors. Such a stance is unacceptable, musicians are entitled to the protection of the law as is any other worker. The employees are subject to instruction, set rehearsal times and performance hours’.

Conversely, counsel for the defendant cited Sedley LJ in Bhatt v Fontain Motors [2010] EWCA Civ 863:

‘In relation to … the burden of proof in relation to what is reasonably practicable, it may be that there is, and needs to be, no fixed allocation of the burden. It will depend on what has happened and the situation in which it has happened’ [paragraph 39].

Further, in its written submissions, the defendant submitted that, in light of its ‘status as a national institution creating music of the highest quality’:

The Court should recognise the great cultural value which the defendant's endeavours have to society and consider this value as being of importance when setting the standard which the defendant should reasonably meet. Some of those most invested in the defendant's endeavours are the musicians. They are partners and stakeholders with the defendant in the pursuit of the highest possible standards, motivated by such concerns as much as the defendant itself. It would be perverse if the imposition of unrealistic standards jeopardised the very enterprise which gives such meaning and satisfaction to the lives of the employees which the standards seek to protect’.

Ruling on Breach of Statutory Duty

Davies J found the defendant in breach of Regulations 5, 6, 7 and 10 of the 2005 Regulations, while s.1 of the Compensation Act 2006 provided no assistance.

Interestingly, at paragraph 205, upon consideration of the defendant’s ‘artistic’ status, the judge said:

‘… I am left with a sense that the ROH's wish to maintain the highest artistic standards and uphold its reputation coupled with the deference accorded to the artistic aims of leading conductors were factors which had the potential to impact upon its obligations pursuant to the 2005 Regulations. 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 and safety of its employees when at their workplace’.

At paragraph 207 of the judgment, Davies J also rejected the defendant’s argument that a finding of breach, under Regulation 7, was a ‘sterile allegation’. She went on to reason that:

‘The mandatory requirements have been breached. The Regulations recognise no distinction as between a factory and an opera house. As at the date of the claimant's accident a breach of the 2005 Regulations provided a basis for a claim in civil liability. Breaches of Regulation 7(3)(a) and (b) are directly relevant to the instruction given to employees for the wearing of personal hearing protectors in the orchestra pit. This Regulation places a more onerous duty on the employer not only in terms of demarcation but in the context of the signage, the instruction it gives to its employees prior to entering the demarcated area, namely that ear protection must be worn. I find that the management of the ROH had not focused properly or at all on these provisions, the instruction given to its employees did not reflect the stringent requirements of Regulation 7(3)(b)’.

At paragraph 209, the defendant was further penalised for allowing the musicians to judge for themselves when hearing protection was necessary. As such, Davies J concluded that the defendant had failed to ‘properly inform and instruct its musicians as to the imperative nature of the need to wear the protection’ and thus failed to comply with the Regulations.

Causation Arguments

The position of the defence was that the medical evidence on causation was ‘opaque’. What difference would hypothetical preventative measures have made? According to the scientific literature, 'acoustic shock' can be onset by noise levels as low as 82 dB. If a sound level this low was responsible for the injury, then the injury had been caused absent of negligence. At no point was the claimant able to describe any specific moment when he was ‘shocked or startled by a particular sound’. This omission fuelled the defence in stating that there could be no attribution between the musical performance and the condition.

Ruling on Causation

Providing an overview of the landscape, Davies J reasoned, at paragraph 223, that:

‘The concept of acoustic shock is relatively new and thus far primarily associated with reports emanating from call centres. Mr Jones, the defendant's expert who retired from clinical practice some five and a half years ago, was dismissive of the concept. I do 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. It is the mechanism of acoustic shock and the nature and symptomatology of the claimant's injury which is relevant to the determination of this issue’.

However, the judge continued, in the following paragraph, to justify that:

‘The description of acoustic shock, namely 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. 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. Audiometry following the incident demonstrates changes in the right ear, not reflected in the left ear. I regard the defendant's contention that Meniere's disease developed at the rehearsal as stretching the concept of coincidence too far by reason of: (i) the nature of the index exposure and (ii) the fact that the person sitting next to the claimant described the loud noise of the trumpets and the similar physical effect upon her. The level of noise recorded during the afternoon, in particular the peak levels, would be consistent with those reported in the medical literature as causing acoustic shock’.

As a result, the claimant was successful on medical causation. At paragraph 229, Davies J held:

‘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’.

IMPACT OF GOLDSCHEIDER

Goldscheider is the first case to find in favour of ‘acoustic shock’ within the music industry. Even though scientific literature had eluded to the idea that the condition can affect other professions, ‘acoustic shock’ has been predominantly regarded as a call centre worker condition.

On breach of duty, Davies J strictly applied the Regulations, rejecting the defendant’s contention that the Noise at Work Regulations fail not make a distinction between noise generated as a by-product and noise created for enjoyment and entertainment. As such, points raised under s.1 of the Compensation Act and autonomy given to orchestral players were not viewed favourably on assessment of risk mitigation. The threshold for ‘reasonable practicability’ remained high.

On medical causation, the judge leaned in favour of ‘acoustic shock’, even though the medical evidence, attributing the condition to the course of employment was ‘opaque’. In deciding against Mr Jones’ diagnosis of Meniere’s, the finding of ‘acoustic shock’ could be perceived as a finding by process of elimination. As time passes, a clearer image of ‘acoustic shock’ will emerge and simultaneously provide clarity on medical causation in disease claims of this type.

The decision is likely to be appealed. However, until the ruling is overturned, there is potential for similar claims to be brought and there seems no reason why these should be restricted to the music or leisure industries.

 

[i] Acoustic shock. Hear-it.org. https://www.hear-it.org/acoustic-shock (Accessed 4 April 2018)

[ii] Milhinch, J.C. Acoustic Shock Injury: Real or Imaginary?. 17 June 2002. https://www.audiologyonline.com/articles/acoustic-shock-injury-real-or-1172 (Accessed 4 April 2018)

[iii] McFerren, D. Acoustic Shock Canadian Audiologist 2 (2) 2015 http://canadianaudiologist.ca/acoustic-shock/ (Accessed 4 April 2018)

[iv] McFerran, D. J. & Baguley, D. M. Acoustic shock. The Journal of Laryngology & Otology 121, 301–305 (2007). https://www.cambridge.org/core/journals/journal-of-laryngology-and-otology/article/acoustic-shock/E74A174BB4647C93F64C3961EE1AAA50 (Accessed 4 April 2018)

[v] Lawton, B. W. Audiometric findings in call centre workers exposed to acoustic shock. Proceedings Institute of Acoustics 25, 249–258 (2003). https://eprints.soton.ac.uk/10756/1/ac_shock.pdf (Accessed 4 April 2018)

[vi] Parker, W., Parker, V., Parker, G. & Parker, A. ‘Acoustic shock’: A new occupational disease? Observations from clinical and medico-legal practice. International Journal of Audiology 53, 764–769 (2014). https://www.tandfonline.com/doi/abs/10.3109/14992027.2014.943847 (Accessed 4 April 2018)

[vii] Hooper, R. E. Acoustic shock controversies. J Laryngol Otol 128 Suppl 2, S2-9 (2014). https://www.cambridge.org/core/journals/journal-of-laryngology-and-otology/article/acoustic-shock-controversies/EFB44746D653FB57A1AF71396CB526EC (Accessed 4 April 2018)

[viii]  Westcott, M. Acoustic shock injury (ASI). Acta Oto-Laryngologica 126, 54–58 (2006). https://www.researchgate.net/profile/Myriam_Westcott/publication/6684004_Acoustic_shock_injury_ASI/links/55b961b508aed621de0867e3/Acoustic-shock-injury-ASI.pdf (Accessed 4 April 2018)

[ix] Ibid at 3

[x]  Londero, A. et al. A Case of Acoustic Shock with Post-trauma Trigeminal-Autonomic Activation. Front. Neurol. 8, (2017). https://www.frontiersin.org/articles/10.3389/fneur.2017.00420/full

[xi] 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.