Hearing Loss Claim at Royal Opera House

[kerry davies]

This is going on so long that the world keeps turning, technology progresses and research continues, as Gridgirl's posts about Vivace and real-time monitoring highlight. We still however have a complete schism in the medical field regarding "acoustic shock" and Meniere's with not a smidgen of decent research into what "single incident acoustic shock" can be accurately defined as. It started out with electronic white noise generated in headsets (I have mild, occasional tinnitus from it) mostly in call centres. Now with this case it appears to be getting closer to NIHL but the medics still don't all agree on how to diagnose it or what the pathological causes of it may be.

 

In December some research was published by Schmidt-Paarup in Denmark showing that a study of all five Danish symphony orchestras revealed;

A prevalence of 35% of symphony orchestra musicians report any tinnitus, but only(?) 21% of the male and 18% of the female musicians have severe tinnitus and consider their tinnitus being a problem. This study showed that the severity of tinnitus is dependent on the accumulated lifetime sound exposure, but independent of the HF hearing thresholds. Accumulated life-time sound exposure is therefore an important risk-factor among other known risk-factors of tinnitus in symphony orchestra musicians.

I wonder if some defendant QC will now claim NIHL is a career choice for orchestral musicians?

 

The costs of insuring against his £750,000 compensation minimum claim could send many less wealthy orchestras to the wall and I wonder what his fellow musicians think of that? More shall be revealed.

[Junior8]

I wonder if some defendant QC will now claim NIHL is a career choice for orchestral musicians?

The costs of insuring against his £750,000 compensation minimum claim could send many less wealthy orchestras to the wall and I wonder what his fellow musicians think of that? More shall be revealed.

 

I suppose they could try - if they'd not read the legislation.

 

On your other point there is double jeopardy since even if they can insure against the risk you can bet your life they'll have to prove compliance if they want to make a claim. Could this mean the days of continuous monitoring in all circumstances?

 

 

 

 

 

[ImagineerTom]

The costs of insuring against his £750,000 compensation minimum claim could send many less wealthy orchestras to the wall and I wonder what his fellow musicians think of that? More shall be revealed.

You're making the same assumption a lot of other people (and by the sounds of it the RoH) make that excessive noise is unavoidable in an orchestra. The simple fact is most orchestra's are laid out based on traditions, most rota's are based on traditions, most rehearsal schedules are based on traditions; there are technological solutions to help & potential lawsuits to settle but just some root and branch reassessment of how the business of an orchestra is carried out can make a huge difference. I've seen Gridgirl's work first hand at the Sydney opera house where the can-do attitude meant that layouts were changed, players were tested and constant refinements to scheduling were made to try and improve the situation with great success; it was a huge culture shock two days later to be in a "traditional" pit and see so many bad practices that were based on nothing more than lazyness or tradition.

The world of orchestra's has so far avoided having to follow the basic safety and welfare rules so many other sectors of entertainment have had to follow; it's finally time for them to accept they have to change and start changing.

[paulears]

I tend to agree that forcing people to change habits should be a positive experience. I can only speak from myself, but my switch to playing with IEMs meant for me a big drop in stage volume, and it's totally beneficial. On those occasions I have to play with wedges, I now wear the ear protection I got through the MU and it's just an adjustment. No different to getting your first glasses, or being made to stop eating rubbish food and going on a diet! You can do it, with a bit of initial effort. Musicians are going to be far less resistant than we imagine.

[GridGirl]

 

I wonder if some defendant QC will now claim NIHL is a career choice for orchestral musicians?

 

The costs of insuring against his £750,000 compensation minimum claim could send many less wealthy orchestras to the wall and I wonder what his fellow musicians think of that? More shall be revealed.

 

I think the major thing to remember here is that pit orchestras and symphony orchestras have a very different way of working. Pit orchestras are always going to be far more susceptible to noise issues due to the nature of the work. Not saying that a symphony orchestra doesn’t have to take due care, but they don’t have the issues that we have. We did 22 performances of Turandot between January and March. It’s one of the loudest works in the repertoire. We do 20 or 21 performances of Sleeping Beauty (the loudest of the three Tchaikovsky ballets) in three weeks. A symphony orchestra might be playing a Mahler symphony, but they’ll have maybe 4 rehearsal calls and 2 performances over a week, and the program will have a couple of other works on it too. Plus a concert hall platform will hopefully have fewer space concerns than a pit, plus you have risers available which makes a big difference. There are still problems, but they’re less severe.

 

This is going on so long that the world keeps turning, technology progresses and research continues, as Gridgirl's posts about Vivace and real-time monitoring highlight. We still however have a complete schism in the medical field regarding "acoustic shock" and Meniere's with not a smidgen of decent research into what "single incident acoustic shock" can be accurately defined as. It started out with electronic white noise generated in headsets (I have mild, occasional tinnitus from it) mostly in call centres. Now with this case it appears to be getting closer to NIHL but the medics still don't all agree on how to diagnose it or what the pathological causes of it may be.

 

There definitely needs to be more research into acoustic shock - I must discuss it with our friendly audiologist - he may know something about any research happening. I can tell you exactly what it looks like, a colleague and I having carried a player suffering from it out of the pit, and interestingly he was diagnosed with it immediately, I believe given steroids to help with it and after a month off, back at work with no further issues. From memory, this was in 2015, so not all that long after the ROH incident.

[kerry davies]

I would be interested to hear opinions, especially from Roger, Tom and Anna as to how we manage H&S in future when we have to consider the unknowable.

We accept that it was not foreseen by anyone, and perhaps was not reasonably foreseeable, that exposure to noise (at certain levels) ... would cause sudden injury. But in our view this is irrelevant in law.

If that is extrapolated in the broader sense of Risk Assessment, that the unforeseeable is the legal responsibility of the responsible person, how do we create RA's or manage H&S? For me H&S management is imagining the worst possible hazards and risk and taking steps to avoid them, a kind of benevolent paranoia. If we can't even envisage the possibility of something how can we be held legally responsible for managing it?

 

I am still puzzled that they upheld Justice Davies's decision to recognise a medical condition when consultants disagreed and I hadn't realised that the claimant was diagnosed with NIHL two years previously but I can let those go. I do think this "unforeseeable" ruling is "difficult".

[dbuckley]

I have no expertise in the field, neither am I a lawyer, but did read the judgement; I think what they are getting at here (hear?) is that if you have not applied the full gamut of protection appropriate for the circumstance, which in the case reviewed, fell into the mandatory (and effective) hearing protection category, then you haven't done enough to provide a "legal shield" from anything that happens, and so you can be held responsible for everything that happens, foreseeable or not.

 

This case went wrong because the ROH were not brutal enough in their mitigations, and (effectively) did not treat the orchestra as a bunch of fitter/turners in a factory. Now you can argue that the law is wrong, and there was argument brought for that, in that the "noise" the orchestra produces is not a byproduct of some activity, but actually the desirable output, but those arguments (this is turning into a punfest) fell on deaf ears at court, and apparently that is the case at law too.

 

This could turn out badly. Option one is upping of game, better prediction, better measurement, better adherence to the law, and better and mandatory hearing protection that actually works for the musicians and conductor, enabling them to still bring their A game. Option two is to turn it down, so there is a business opportunity here for Formula Sound to start selling the Clockwork Orange Orchestra edition, and if the orange light stays on the for ten seconds the "mandatory hearing protection" sign comes on for the remainder of the run. Option three is for ROH to fund-raise and get used to paying big fines. Option four is to strike the loud works from the programme, admitting they can't be accommodated in the venue. This sounds like a bit of a thin end of the wedge argument, and eventually, only the weediest of works will be able to be performed there. Option five is a change to the law, but one has to think, a law change that allows hearing damage is something that might be a hard sell.

 

Although this case is about the ROH, and many of the problems are due to the ROH physical layout, the ROH can't be unique in having a challenging pit setup.

[GridGirl]

I would be interested to hear opinions, especially from Roger, Tom and Anna as to how we manage H&S in future when we have to consider the unknowable.

We accept that it was not foreseen by anyone, and perhaps was not reasonably foreseeable, that exposure to noise (at certain levels) ... would cause sudden injury. But in our view this is irrelevant in law.

If that is extrapolated in the broader sense of Risk Assessment, that the unforeseeable is the legal responsibility of the responsible person, how do we create RA's or manage H&S? For me H&S management is imagining the worst possible hazards and risk and taking steps to avoid them, a kind of benevolent paranoia. If we can't even envisage the possibility of something how can we be held legally responsible for managing it?

 

I am still puzzled that they upheld Justice Davies's decision to recognise a medical condition when consultants disagreed and I hadn't realised that the claimant was diagnosed with NIHL two years previously but I can let those go. I do think this "unforeseeable" ruling is "difficult".

 

It's an interesting conundrum, that's for sure. The whole acoustic shock thing now of course has precedent in law (I'm not sure if British precendent holds in Australia or not?) which I guess means that regardless of whether you think it's a real thing or not, it has to be considered. I think that what this means for pit orchestras is that artistic considerations (which I believe was the reason that the orchestra was set up the way it was) will always now have to come second to WHS considerations. The fact that they were able to rearrange the pit to reduce noise levels, as I said in an earlier post, is what I think did them in - it should have been set up that way from the start. We send conductors a proposed pit plan for each work and request feedback, however we have no qualms about saying "no we can't do that for noise reasons" whereas that may not have happened in this case. Classic example: our bass section is not close to our cello section, in our "usual" setup. Very much not ideal. We could swap over the horns and the basses, which artistically would be far better for both of them, however our horns sit in front of the brass wall which has an angled Perspex top. The horn players' heads are below the Perspex, so they're protected from the volume, but because the basses sit higher, they would have their heads above the Perspex and in the line of fire. Conductors have requested it and we just tell them that we understand, but that we simply can't.

 

I have no expertise in the field, neither am I a lawyer, but did read the judgement; I think what they are getting at here (hear?) is that if you have not applied the full gamut of protection appropriate for the circumstance, which in the case reviewed, fell into the mandatory (and effective) hearing protection category, then you haven't done enough to provide a "legal shield" from anything that happens, and so you can be held responsible for everything that happens, foreseeable or not.

 

This case went wrong because the ROH were not brutal enough in their mitigations, and (effectively) did not treat the orchestra as a bunch of fitter/turners in a factory. Now you can argue that the law is wrong, and there was argument brought for that, in that the "noise" the orchestra produces is not a byproduct of some activity, but actually the desirable output, but those arguments (this is turning into a punfest) fell on deaf ears at court, and apparently that is the case at law too.

 

This could turn out badly. Option one is upping of game, better prediction, better measurement, better adherence to the law, and better and mandatory hearing protection that actually works for the musicians and conductor, enabling them to still bring their A game. Option two is to turn it down, so there is a business opportunity here for Formula Sound to start selling the Clockwork Orange Orchestra edition, and if the orange light stays on the for ten seconds the "mandatory hearing protection" sign comes on for the remainder of the run. Option three is for ROH to fund-raise and get used to paying big fines. Option four is to strike the loud works from the programme, admitting they can't be accommodated in the venue. This sounds like a bit of a thin end of the wedge argument, and eventually, only the weediest of works will be able to be performed there. Option five is a change to the law, but one has to think, a law change that allows hearing damage is something that might be a hard sell.

 

Although this case is about the ROH, and many of the problems are due to the ROH physical layout, the ROH can't be unique in having a challenging pit setup.

 

In my opinion, a combination of options 1 and 2 is what will happen. Option 4 in a watered-down version may well happen, in that loud works are not removed, but played less often. There is also an option 6, which is that the ROH changes the way their player rosters are done. From what I understand, each player has a "buddy" and the workload is split between the two of them by their own agreement. This doesn't take noise exposure into account at all - someone might end up doing a Strauss, a Puccini and a Tchaikovsky work and their buddy doing three Mozart works, which leads to a very unbalanced noise load. It's still more relevant for NIHL than the acoustic shock issue, but we do find that noise exposure is cumulative and a level that doesn't bother you at the start of a season is very problematic when you've had four heavy weeks. I don't know if this makes you more susceptible to acoustic shock or not, although my gut feeling is that if you're already feeling like your ears are beaten up, it wouldn't take as much as it would with fresh ears. I think they'll go to a model more like ours where noise exposure is predicted for each season and taken into account with the rostering.

[Simon Lewis]

Option two is to turn it down, so there is a business opportunity here for Formula Sound to start selling the Clockwork Orange Orchestra edition,

 

A little pedantry here... unless you are referring the pieces (mainly) by Purcell and Beethoven from Kubrick's Clockwork Orange film, I suspect you meant Castle Groups' Electronic Orange Entertainment Noise Controller, rather than Formula Sounds' Sentry Noise Controller device ?

 

 

[Jivemaster]

If you reduce a musician's noise dose by employing several musicians for each position and rotating them carefully through loud and less loud performances with appropriate hearing protection, how does an orchestra management actually know what else they do in life and how much noise load they gain from employment from self employment and from recreational activities. Is there a musician anywhere that doesn't teach or occasionally dep for another as a personal arrangement, Could you contractually prohibit your orchestra members from acquiring noise dose outside their employment?

[paulears]

What would the protection device actually do? Open trapdoors and drop the offending players into the basement, or turn off the orchestra stand lights? If it's simply noticing a flashing danger light, I doubt it would be very effective. Maybe electric shock to the conductors baton?

[GridGirl]

If you reduce a musician's noise dose by employing several musicians for each position and rotating them carefully through loud and less loud performances with appropriate hearing protection, how does an orchestra management actually know what else they do in life and how much noise load they gain from employment from self employment and from recreational activities. Is there a musician anywhere that doesn't teach or occasionally dep for another as a personal arrangement, Could you contractually prohibit your orchestra members from acquiring noise dose outside their employment?

 

This is a very good question and one to which I don’t have an answer. We broached the idea of our permanent players informing us of outside work for this reason, and it ended in a player rep storming out of a meeting in a rage. And that wasn’t even considering telling them they couldn’t do other work, just asking them to tell us. This is why I think a claim for NIHL wouldn’t succeed, because you couldn’t pin it to one specific event or employer. This case is different though, due to it being acoustic shock and one event as the problem. All we can do is educate them as much as we possibly can.

[Stuart91]

Option one is upping of game, better prediction, better measurement, better adherence to the law, and better and mandatory hearing protection that actually works for the musicians and conductor, enabling them to still bring their A game.

 

That's certainly achievable for many large, well funded venues. I'd worry about the "chilling effect" that this might have lower down the pecking order. "Elf 'n' safety" is a very convenient excuse for bean-counters wanting to get rid of pit bands from pantos and musical theatre.

 

It would be nice if there's some clear guidance for people - even just a "tip sheet" that explains how layout changes affect noise levels would be a really useful resource. Of course, when it's all based upon interpretations of case law, it's difficult to come up with definitive advice that isn't going to land the writer in the dock themselves...

 

 

Clockwork Orange Orchestra edition

 

I have this image in my head of a Glasgow Subway Train barrelling across the room and clearing the stage if it gets too loud.

 

But joking aside, is there an obvious measurement package for this specific purpose that venues can buy off the peg? Or are people having to come up with their own bespoke solutions?

[Junior8]

If you reduce a musician's noise dose by employing several musicians for each position and rotating them carefully through loud and less loud performances with appropriate hearing protection, how does an orchestra management actually know what else they do in life and how much noise load they gain from employment from self employment and from recreational activities. Is there a musician anywhere that doesn't teach or occasionally dep for another as a personal arrangement, Could you contractually prohibit your orchestra members from acquiring noise dose outside their employment?

 

I think this is the nub of the different issues. For a jobbing musician it would be almost impossible to make a claim for NIHL against one particular employer. The ROH failed in its appeal because it was found they were in breach of the law in this one incident, Indeed the original trial judge was so dismissive of their case one wonders why they bothered to appeal unless it was in the belief that a higher court might somehow come to the conclusion that as it is art it must have an exception.

 

Kerry is right to point out the difficulty here but the judgement does at least oultine in clear terms what the duty is. Irrespective of the claimant's injury the defendant was already in breach of its duty.

 

As the court put it as early as para 46

 

We accept that it was not foreseen by anyone, and perhaps was not reasonablyforeseeable, that exposure to noise levels of 92dB(A) (as opposed to peak noise levelsin excess of 137dB©) would cause sudden injury. But in our view this is irrelevant inlaw. The Regulations were enacted in order to protect employees against the risk ofinjury to their hearing caused by excessive noise at work. It was foreseeable that if theupper exposure action value was exceeded by a factor of four the musicians wouldsuffer injury to their hearing. Once the Defendant has failed to show that it reduced thenoise exposure to as low a level as was reasonably practicable, and that it took allreasonably practicable steps to reduce it to 85 dB(A), the fact that the foreseeable riskwas of long term rather than traumatic injury is in our view neither here nor there:Hughes v Lord Advocate [1963] AC 837; Page v Smith [1996] 1 AC 155.

For this reason the question of knowing what other work a player is doing is quite irrelevant to this kind of sudden traumatic hearing damage.

Edited April 27, 2019 by Junior8

[dbuckley]

A little pedantry here... unless you are referring the pieces (mainly) by Purcell and Beethoven from Kubrick's Clockwork Orange film, I suspect you meant Castle Groups' Electronic Orange Entertainment Noise Controller

 

Yep, that's the honey, slip of the memory.

 

What would the protection device actually do? Open trapdoors and drop the offending players into the basement, or turn off the orchestra stand lights? If it's simply noticing a flashing danger light, I doubt it would be very effective. Maybe electric shock to the conductors baton?

That brings up interesting visuals...

 

It was a slightly tongue in cheek suggestion, but not much so; If the measured sound pressure level in the area was above upper EAV as described by law and regulation, then the area is required to become a "Hearing Protection Zone", and there is mandatory signage required for such a zone, the sign of the head outline with ear defenders on, and the text "Hearing protection must be worn in this area". So the clockwork orange would expose such a sign. The judgement picked up on the lack of such a sign as one of the violations of the law.

 

Having to mandatorally wear hearing protection at all times whilst in the pit (because that is what the sign means) would be such an inconvenience to the musicians that the appearance of the glowing orange orb would have the same effect that it has had on bands and DJs through the years; a rapid reduction in volume. Though you're right, maybe it wouldn't be seen unless it was on the Cconductor's stand.

 

Obviously, doing to orchestras what the clockwork orange has done to bands and DJs for years is as almost as horrible it has been traditionally, evil bloody things, but when the alternative is a day in court and a large impact to the chequebook, not to mention hearing damage, the stakes are high.

 

The whole acoustic shock thing now of course has precedent in law (I'm not sure if British precendent holds in Australia or not?) which I guess means that regardless of whether you think it's a real thing or not, it has to be considered.

 

Certainly in NZ, the courts often refer to UK and Canadian precedent in judgements, particularly in the higher courts, so although they are not binding, they are informative. So I guess its a Commonwealth thing.