Wagner’s Die Walküre v. Jet Engine: How Should the United Kingdom Protect the Hearing of its World-Class Musicians?

By: Michael Bechtel

A 2018 United Kingdom case in the High Court of Justice Queen’s Bench Division led to a landmark ruling that identified a unique issue regarding auditory injuries to musicians within the course of their employment.[1] The case, Goldscheider v. Royal Opera House Covent Garden Foundation,[2] concerned a violist, Chris Goldscheider, whose hearing was permanently damaged while playing in the orchestra pit during a rehearsal for Wagner’s Die Walküre at the Royal Opera House.[3] Goldscheider suffered from acoustic shock as a result of the “unacceptable noise levels” while seated directly in front of the brass section in the pit at the rehearsal.[4] The highest noise level during that rehearsal exceeded one-hundred thirty decibels,[5] which at least one reporter has stated is “roughly equivalent to that of a jet engine.”[6]

The high court ruled in favor of Goldscheider, finding that the Royal Opera House Covent Garden Foundation (ROH) had breached several regulations concerning control of noise at work.[7] The extreme noise caused Goldsheider’s injuries, which have ended his music career affected his ability to perform everyday household tasks.[8] On appeal, the Court of Appeal ruled that the ROH had not taken reasonable steps to protect Goldscheider from the dangerous noise levels and upheld the judgement on liability in favor of Goldscheider.[9]

While the Goldscheider case was a landmark decision with great implications for the music industry,[10] the issue of musicians’ exposure to extreme sound levels while rehearsing and performing is not a novel one. One study of two symphony orchestras has shown that classical musicians are often exposed to average sound levels up to 92 decibels.[11] A survey done in the U.K. showed that 47% of the musicians surveyed had experienced hearing problems and a 2014 German study showed that musicians experience a rate of hearing loss four times greater than the general population.[12] The Goldscheider case, however, is the first time that a court has considered “the music industry’s legal obligations towards musicians’ hearing” in light of statutory health and safety requirements.[13]

The regulations that the ROH breached in this case are found in the United Kingdom’s Control of Noise at Work Regulations of 2005.[14] These regulations provide that the “upper exposure action values are— (a) a daily or weekly personal noise exposure of 85 dB,” and that the “exposure limit values are— (a) a daily or weekly personal noise exposure of 87 dB.”[15] Additionally,

[i]f any employee is likely to be exposed to a noise at or above an upper exposure action value, the employer shall reduce exposure to as low a level as is reasonably practicable by establishing and implementing a programme of organisational and technical measures, excluding the provision of personal hearing protectors, which is appropriate to the activity.[16]

The regulations further provide that an employer should “provide personal hearing protectors to any employee who” will likely be exposed to noise above the upper exposure action value in the event that an employer “is unable by other means to reduce the levels of noise . . . to below an upper exposure action value.”[17]

The ROH had provided Goldscheider with custom-molded earplugs with 9 dB filters, and also had provided foam earplugs that provided up to 28 dB attenuation.[18] However, the custom earplugs did not offer sufficient protection against the loudest noises, while the foam earplugs made it difficult to hear other instruments, his own instrument, and instructions from the conductor.[19] Wearing hearing protection while performing is often rare for orchestral musicians because it becomes very difficult to perform due to the inability to hear the other instruments and the players’ own instruments.[20]

In the Court of Appeals opinion, the court accepted the ROH’s argument that “it was not ‘reasonably practicable for orchestral musicians to wear hearing protection at all times whilst performing and rehearsing.’”[21] But the only hearing protection that was tried were the 9dB filter custom earplugs, which did not provide enough protection, and the foam earplugs, which blocked too much sound and made it difficult to perform.[22] Though the Court of Appeal overturned the part of the ruling that stated that earplugs should be mandatory,[23] perhaps that should not be the end of the discussion. The regulations specifically state that the employer should reduce exposure to the noise level “excluding the provision of personal hearing protectors.”[24] However, the case notes that many of the other possible measures to reduce noise levels, such as expanding the size of the pit or removing the stage overhang, would have been impossible or impractical.[25] Perhaps in the interim, while the ROH and other similar music venues decide what paths to take to comply with the regulations, the court should still require the ROH and other employers of musicians to provide a variety of ear protection and assessments.

While ROH claims that they did provide a “variety of hearing protection,”[26] the facts of the case indicate that they did not provide a truly reasonable option that would allow a musician’s hearing to be adequately protected while still being able to hear well enough to perform the music.[27] Earplugs have been custom made specifically for musicians that allow for mid to high frequencies to still be heard clearly, unlike the muffled sound from inexpensive foam earplugs, that still provide up to 25dB attenuation.[28] These custom earplugs can additionally have interchangeable filters of varying strengths, allowing for varying levels of protection based on need.[29] However, these custom earplugs and interchangeable filters are quite expensive and could potentially be cost-prohibitive for musicians.[30]

The U.K. Musicians Union, Help Musicians UK, and Musicians Hearing Services have all partnered to develop “a scheme that gives access to musician-specialist audiologists and bespoke hearing protection for an affordable amount.”[31] However, even this scheme only provides “[o]ne set of free custom made, specialist musicians’ earplugs.”[32] Perhaps, in determining what measures should be taken to comply with the Control of Noise at Work Regulations, the employer should be required to provide not only multiple sets of earplugs and filters with different decibel attenuation levels, but also some of the other benefits that the Musicians’ Hearing Health Scheme provides, including audiological assessments and check-ups from a musicians’ hearing specialist.[33]

Though requiring hearing protection was “never intended to be the complete solution,”[34] it should not be overlooked as a partial solution to mitigating some of the effects that extreme noise has on orchestra musicians on a daily basis.[35] Renovating a performance venue such as the Royal Opera House would be a costly and time-consuming endeavor, and finding the “balance between artistic considerations and health and safety”[36] may prove to be a much less demanding task if the requirement of providing multiple sets of musician-specific ear protection and audiological assessments and check-ups from musicians’ hearing specialist were included as one piece of the overall solution.

#musician #hearingloss #BlogPost #UnitedKingdom

[1] See Clive Coleman, Musician Wins Landmark Ruling over Ruined Hearing, BBC News (Mar. 28, 2018), https://www.bbc.com/news/entertainment-arts-43571144.

[2] See Goldscheider v. Royal Opera House Covent Garden Foundation [2018] EWHC (QB) 687 (Eng.).

[3] See Coleman, supra note 1.

[4] Damien Gayle, Viola Player Wins Royal Opera House Case for Hearing Damage, Guardian (Mar. 28, 2018, 1:18 PM), https://www.theguardian.com/culture/2018/mar/28/viola-player-wins-royal-opera-house-case-for-hearing-damage.

[5] Goldscheider, [2018] EWHC 687 [98].

[6] Coleman, supra note 1. See also Gayle, supra note 4.

[7] See Gayle, supra note 4.

[8] See Coleman, supra note 1.

[9] See Royal Opera House Loses Appeal over Viola Player’s Hearing, BBC News (Apr. 17, 2019), https://www.bbc.com/news/entertainment-arts-47965734; Goldscheider v. Royal Opera House Covent Garden Foundation [2019] EWCA (Civ) 711 [81] (Eng.).

[10] See Coleman, supra note 1.

[11] Schmidt et al., Sound Exposure of Symphony Orchestra Musicians, 55 Annals Occupational Hygiene 893, 902 (2011).

[12] Help Musicians UK, Professional Musicians in the UK Musicians’ Hearing Survey 1 (2015), https://www.helpmusicians.org.uk/assets/files/help_musicians_uk_hearing_survey_june_2015.pdf; Musicians Are Four Times More Likely to Suffer Hearing Damage, Help Musicians (Nov. 4, 2015), https://www.helpmusicians.org.uk/news/latest-news/musicians-are-four-times-more-likely-to-suffer-hearing-damag.

[13] See Coleman, supra note 1.

[14] See The Control of Noise at Work Regulations 2005, SI 2005/1643 (Eng.).

[15] Id. art. 4, ¶¶ 2(a), 3(a).

[16] Id. art. 6, ¶ 2.

[17] Id. art. 7, ¶ 2.

[18] See Goldscheider v. Royal Opera House Covent Garden Foundation [2018] EWHC (QB) 687 [14] (Eng.).

[19] See id.

[20] See Schmidt et al., supra note 11, at 894.

[21] Royal Opera House Loses Appeal over Viola Player’s Hearing, supra note 9; Goldscheider v. Royal Opera House Covent Garden Foundation [2019] EWCA (Civ) 711 [52] (Eng.).

[22] See Goldscheider, [2018] EWHC (QB) 687 [14].

[23] See Anita Singh, Orchestra Pits Should Be Designated ‘Hearing Protection Zones’ in the Same Way As Building Sites, Court Rules As ROH Loses Appeal Against Viola Player, Telegraph (Apr. 17, 2019, 9:01 PM), https://www.telegraph.co.uk/news/2019/04/17/orchestra-pits-should-designated-hearing-protection-zones-way/.

[24] The Control of Noise at Work Regulations 2005, art. 6, ¶ 2, SI 2005/1643 (Eng.) (emphasis added).

[25] See Goldscheider, [2018] EWHC (QB) 687 [64].

[26] Implications for Hearing Loss Claims – Goldscheider v. Royal Opera House, Brodies, https://brodies.com/blog/health-and-safety/implications-for-hearing-loss-claims-goldscheider-v-royal-opera-house/ (last visited Mar. 3, 2020).

[27] See Goldscheider, [2018] EWHC (QB) 687 [14].

[28] See ER Series Musician Earplugs – Custom, Sensaphonics, https://www.sensaphonics.com/products/erseriesplugs (last visited Mar. 3, 2020).

[29] See id.; Musician Earplug Filters (Pair), Sensaphonics, https://www.sensaphonics.com/products/filters-for-er-series-musician (last visited Mar. T, 2020).

[30] See ER Series Musician Earplugs – Custom, supra note 27; Musician Earplug Filters (Pair), supra note 28.

[31] Musicians’ Hearing Health Scheme, Musicians’ Union, https://www.musiciansunion.org.uk/Home/Advice/Your-Career/Protection/musicians-hearing-health-scheme (last visited Mar. 3, 2020).

[32] Id.

[33] See id.

[34] Royal Opera House Loses Appeal over Viola Player’s Hearing, supra note 9.

[35] Schmidt et al., supra note 11, at 894.

[36] Goldscheider v. Royal Opera House Covent Garden Foundation [2018] EWHC (QB) 687 [64]–[65] (Eng.).