Hearing Loss Claim at Royal Opera House

[Junior8]

I wonder how this case is progressing. It was brought back to mind because my colleagues and I had a long chat with the audiologist who does all our hearing tests and fitted earplugs this week - we've been sending people to him for ages but had never actually met the guy. Turns out he's a death metal drummer when he's not being an audiologist! Anyway, we discussed this claim and he reckons that without a baseline hearing test from when the player started at the ROH, it would be very unlikely that the damage can be pinned on them. And even then, if the workplace had issued him with earplugs and a directive to use them, they have done all they can. I'm sitting in the orchestra "pit" currently (we're actually out of the pit and in a studio - singers are on the front steps of the building!) and noticed one player has tissue paper wadded up in his ears. I KNOW he has proper fitted earplugs because I sent him the referral to get them, but I can't force him to wear them. And wadded up tissue paper isn't going to do a damn thing for his hearing.

 

Nothing has appeared recently

[Jivemaster]

" he has proper fitted earplugs because I sent him the referral to get them, but I can't force him to wear them."

 

In the UK failure to wear PPE provided can be an offence, it's very likely that it would be a formal disciplinary issue with the likely possibility of dismissal.

[MarkBarl]

" he has proper fitted earplugs because I sent him the referral to get them, but I can't force him to wear them."

 

In the UK failure to wear PPE provided can be an offence, it's very likely that it would be a formal disciplinary issue with the likely possibility of dismissal.

 

Way back in the dim distant past, I remember sitting in a lecture that quoted case law that employers responsibility is not just supplying PPE but ensuring workers used them. This includes monitoring that PPE is used and disciplining employees who do not comply with the PPE requirements. e.g. hard hats worn when they should be eye protection etc.

[GridGirl]

" he has proper fitted earplugs because I sent him the referral to get them, but I can't force him to wear them."

 

In the UK failure to wear PPE provided can be an offence, it's very likely that it would be a formal disciplinary issue with the likely possibility of dismissal.

 

Way back in the dim distant past, I remember sitting in a lecture that quoted case law that employers responsibility is not just supplying PPE but ensuring workers used them. This includes monitoring that PPE is used and disciplining employees who do not comply with the PPE requirements. e.g. hard hats worn when they should be eye protection etc.

 

In an industrial situation I can absolutely agree with this. However in the orchestra pit it is not quite that simple. For instance, one of our brass players has major issues when it comes to playing with earplugs in; due to some factor that we can't quite work out (possibly some major dental work done in the past, we think), the plugs cause his skull bones to vibrate oddly when he plays (pressure of mouthpiece on jaw), this causes his eyeballs to vibrate and therefore he can't read the music properly. Therefore, earplugs make it impossible for him to do his job properly. I don't think I'll ever see the day that we fire someone for not wearing their earplugs. Having said that, should a player sue the company for hearing loss, the question "were you supplied with appropriate PPE, and did you use it correctly?" will undoubtedly be asked, and if the answer is no, then it's on them and not the company.

[Roderick]

Allow me to weigh in with some specific Australian requirements.

Division 5 of the WHS Regulation, Clause 44(3)(a)stipulates that the PPE is "(I) suitable having regard to the nature of the work and any hazard associated with the work, and (ii)a suitable size and fit and reasonably comfortable for the worker who is to use or wear it,".

From the description of the issue I would suggest that an earplug is not a suitable option. Providing something that isn't fully suitable for the work to be done, and it makes no difference if that is jackhammering or playing an instrument, means that the responsibility still remains with the PCBU, not the worker. In this case it is clearly not suitable because it prevents him from doing the work, playing his instrument.

So therefore the problem returns to the orchestra and an alternative solution must be found. Have you tried earmuffs for instance? Maybe not visually attractive but that is of little concern in matters WHS....

[GridGirl]

Allow me to weigh in with some specific Australian requirements.

Division 5 of the WHS Regulation, Clause 44(3)(a)stipulates that the PPE is "(I) suitable having regard to the nature of the work and any hazard associated with the work, and (ii)a suitable size and fit and reasonably comfortable for the worker who is to use or wear it,".

From the description of the issue I would suggest that an earplug is not a suitable option. Providing something that isn't fully suitable for the work to be done, and it makes no difference if that is jackhammering or playing an instrument, means that the responsibility still remains with the PCBU, not the worker. In this case it is clearly not suitable because it prevents him from doing the work, playing his instrument.

So therefore the problem returns to the orchestra and an alternative solution must be found. Have you tried earmuffs for instance? Maybe not visually attractive but that is of little concern in matters WHS....

 

Actually yes, we do have more than one pair of earmuffs which appear from time to time! The other thing which I should reinforce is that for us, earplugs are an absolute last resort. We noise monitor everything, and players all have individual noise graphs produced so I can accurately estimate their noise exposure over any given period of time. Should it be too high, they'll be replaced for as many shows as need be to keep their exposure at an appropriate level. Respite is the best thing we can give them, so we do. And if someone comes to me and says they're struggling with noise, I don't care whether their exposure is under the 85dBA level or not - if they need a night off, they get one.

[Roderick]

The pro-active approach by the orchestra is well known and that would be the deciding factor IF it ever was challenged.

 

But because this is a public forum I had to point out that handing someone a pair of earplugs does not discharge your duty of care.

With WHS more so than many things in life, the devil is in the detail. Cut'n'Paste solutions without any follow-up or structure are sadly too common in our industry.

Certainly the Australian legislation recognises that things can go wrong despite the best efforts, it is important to be able to show that sound (no pun intended) systems are in place.

What counts most is having systems in place that consult with all workers and find the best possible option.

[Junior8]

He has won his case http://www.bbc.co.uk/news/entertainment-arts-43571144

 

From the above

 

Mrs Justice Davies disagreed, ruling that "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."

Edited March 28, 2018 by Junior8

[sunray]

He has won his case <a href='http://www.bbc.co.uk/news/entertainment-arts-43571144' class='bbc_url' title='External link' rel='nofollow external'>http://www.bbc.co.uk...t-arts-43571144</a>From the above<I>Mrs Justice Davies disagreed, ruling that "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."</I>

 

OOOO that's interesting, it may cause a few problems in the industry.

[kerry davies]

OOOO that's interesting, it may cause a few problems in the industry.

If you read the whole thread then it shows that it shouldn't be any trouble if you do things correctly. We still don't know what the outcome will be and he may just be given representative damages of a nominal amount because of his own contributory actions.

 

Not just sitting right in front of a Wagnerian brass section but possible cumulative damage from over-rehearsing his own instrument for years and playing in heavily amplified, large scale events.

[pmiller056]

Unfortunately for the person concerned, he was probably told to sit in front of the brass section because that's where the Viola's sit. If he'd asked or tried to move to a different place I suspect he would have been handed his P45.

[GridGirl]

OOOO that's interesting, it may cause a few problems in the industry.

If you read the whole thread then it shows that it shouldn't be any trouble if you do things correctly. We still don't know what the outcome will be and he may just be given representative damages of a nominal amount because of his own contributory actions.

 

Not just sitting right in front of a Wagnerian brass section but possible cumulative damage from over-rehearsing his own instrument for years and playing in heavily amplified, large scale events.

 

"Do things correctly" is not always easy, or even possible sometimes. We have what used to be a full-scale disaster of an orchestra pit, as I've said before, and even now after a big refurbishment it's still massively problematic, due to the fact that no-one wanted to give us a billion dollars to completely rebuild the theatre so that the whole pit is out the front of the stage, instead of having 2/3 of it under the stage as we do. As I have posted earlier in this thread, we are doing everything we can, but we can't eliminate the problem. But I absolutely think that what Kerry says about the cumulative damage should be taken into account - he's played on stage with Kylie Minogue and that won't have been quiet. In all honesty I'm baffled as to how they seem to have been able to pin it to one specific event and I think if the ROH appeal, as I suspect they will, that that line may very well be taken.

 

Suffice to say we're concerned about the ruling and discussing with a lot of people today.

 

Unfortunately for the person concerned, he was probably told to sit in front of the brass section because that's where the Viola's sit. If he'd asked or tried to move to a different place I suspect he would have been handed his P45.

 

Someone has to sit in front of the brass! And orchestras tend to sit in one formation for many artistic reasons, so yeah, he would not have anywhere else to go and sit. If he'd come to me, I would have shuffled things around to gain him as much space as possible and move him as far forward as I could, away from the brass, but in a crowded pit (and with Wagner it will have been chockablock) there's not many options usually.

[paulears]

Surely, when people make career choices, the potential risks to their health from that career have to be partially accepted? I've always been amazed that so many musicians risk their long term health and salary by not protecting themselves. You don't turn up to work on Wagner innocently expecting chamber orchestra levels. Common sense says hearing protection has to be a shared responsibility. In the past couple of years I've taken more steps to protect my hearing than I did in the previous 30 yrs, and while I should have done it before, I made the choice not to. I can't now look back and try to find people to blame. My odd venue always try to follow new rules, but frequently don't understand them. I asked for some earplugs for the crew on one way too loud show we had in. The bar manager had them, thousands, still sealed in the original box. Nobody had ever used them, but they had them.

[Junior8]

The full judgement is here https://www.judiciary.gov.uk/judgments/christopher-goldscheider-v-the-royal-opera-house-covent-garden-foundation/

 

The matters of long term exposure and contributory negligence are dealt with in depth.

[bigclive]

The answer here is to put a HUGE tub of earplugs on a shelf on the stage with a sign that says:-

 

Long term exposure to loud sound can cause hearing damage. We strongly recommend the use of earplugs to protect your hearing. You may prefer to invest in a personal pair of high quality noise attenuators as used in other areas of the music industry for better control of the sound without compromising artistic feedback.