Musician Wins Right to Compensation for Hearing Damage

A viola player who suffered hearing damage during a three-hour rehearsal of Wagner's Ring Cycle has won the right to substantial compensation from the Royal Opera House (ROH).

The conductor had rearranged the orchestra so that the musician was sitting immediately in front of 18 to 20 brass players, with the principal trumpet positioned close to his right ear. Although the ROH had provided earplugs, it left it up to individual musicians whether or not to use them. The claimant had done so if he felt pain or discomfort or in anticipation of a particularly loud passage.

The musician claimed that he had been exposed to noise levels above the upper exposure action value and this had caused him to develop acoustic shock, a condition that can arise from exposure to unexpected loud sounds that is more normally associated with the sort of noises experienced by telemarketers or call-centre workers over their headphones.

He developed tinnitus and was subsequently diagnosed with high frequency hearing loss. His hearing was so badly affected that he was forced to give up his musical career and he and his family had to move to the country to avoid noises that triggered or exacerbated his symptoms. He launched proceedings against the ROH alleging, amongst other things, breaches of the Control of Noise at Work Regulations 2005.

The ROH argued that the noise produced by a professional orchestra is the product, not the by-product, of its activities, and claimed that it had taken all reasonably practicable steps to protect the musician's hearing. Were the High Court to find in his favour, it would 'unreasonably compromise the output of the orchestra'.

In upholding the musician's claim, however, the Court found that no adequate risk assessment was carried out and no attempt had been made to monitor noise levels in the cramped orchestra pit following the new orchestral configuration. The Court heard evidence from another viola player, who described the noise coming from the brass section during the rehearsal as unbearably loud. Even though she had worn personalised 25dB earplugs throughout, her hearing was also affected, leaving her more sensitive to noise for a number of weeks. The ROH had received previous complaints about excessive noise levels but had failed to instruct the musician to wear the earplugs provided for the duration of the rehearsal. His use of the hearing protection provided was therefore consistent with the advice given.

In deciding whether the musician was guilty of contributory negligence, the Court accepted that he should have left the orchestra pit when the noise levels began to cause him discomfort, but was of the opinion that the noise that caused the acoustic shock damage to his hearing was the directional sound coming from the principal trumpet, and by the time the musician became aware that he should leave the rehearsal, the damage had already occurred.

The amount of the musician's compensation remains to be assessed, but is bound to be substantial given the impact the damage to his hearing has had on his musical career.

Information on acoustic shock can be found on the website of the Health and Safety Executive.

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