Hearing Loss Claim at Royal Opera House

[kerry davies]

Disagreement is good, it makes one think.

The RoH were one of the movers behind the writing of Sound Advice so they have never just ignored noise as a problem. They have been proactive in this area since the beginning. They had and have a policy of rotation with over 100 musicians on rota plus "casuals". They had and have a policy of "just leave" and encourage self responsibility in management and reporting of noise problems. Justice Davies agreed that changing pit layout and thus losing £50M a year in ticket sales was "not reasonably practicable". As it was the original new layout for the season cost over a third of a million in lost sales BEFORE this problem arose. For employed orchestra members they have and had a monitoring programme. All the musician witnesses called by the claimant agreed that RoH used screens, baffles, acoustic panels and were "doing all that could be done to control exposure to noise levels and install the best protection."

 

This case is the first one outside telephone headset use where AS has been found. Justice Davies agreed it was unique in law and unforeseeable so what more could Matt Downes have done to prevent a hitherto non-existent problem arising especially when it took over 2 days rehearsal before anyone bothered to tell him about it?

 

If he had been unable to reduce levels then he would have no problem because they were always within the legal limits. By succeeding in lowering exposure, as the law demands, he was guilty. He obeyed the law, to the best of his ability, and was found guilty because he got better at obeying the law.

 

Your final point about the redevelopment reminds me that during renovation they walled the site off behind an 8 foot plywood fence and when they took it down the day before the Gala opening they found that the new marbley floor raised the foyer floor level and there was a one inch high trip hazard right across the pedestrian access to the place. Cue panic, exeunt stage left pursued by bears, etc etc. The pit is almost identical to the one they have used for 72 years.

Watch the Minotaur video to see how they manage the percussion.

[ImagineerTom]

If they have screens and baffles and all that sort of stuff then why weren't they being used (or used correctly) for the rehearsal where this incident occurred then? Furthermore why didn't the managers/superiors (leader of the orchestra, orchestra manager, the conductor) note that important safety equipment was missing/faulty and take appropriate action. If a get-in team arrived with no steelies or PPE and were allowed to load in a show the crew boss / technical manager would be legally responsible and be liable for prosecution even if no accidents occurred. Clearly their internal systems and processes either don't exist or have fundamental flaws?

 

Likewise if it took 2 days for the incident to be reported then it's highlighting that their internal processes are insufficient. Instead of an orchestra imagine this was a tech get in and one of the crew (who has already been allowed to work without wearing any proper PPE) got a huge electric shock, no-one noticed that accident occurring and no-one noticed that the crew member was missing for days afterwards??

 

The more I hear about this the more I'm inclined to agree that overall RoH are at fault because either they didn't have safeguards, weren't following best practice and apparently were allowing major systematic breakdowns of fairly basic safety and operational procedures to take place surely?

 

...and having just watched the Minotaur video I'm even more shocked. There's NO work done in that orchestra to deal with noise apart from a half-assed attempt by putting percussion in the boxes. Admittedly smaller pits on cruise ships involve musos on different hight rostra (so that no one has a trumpet right by their ear) and multiple screens to control sound, the touring circus bands I work with are on different height rostra and have musicians arranged so they aren't playing at each-other, having seen Gridgirl's pit's they have whole complicated inverted terrace systems in the pit, screens everywhere, baffles and coatings and objects floating above the musicians. Watching that RoH video was like watching one of those 1920's videos of people building skyscrapers compared to modern building techniques.

[GridGirl]

I do not agree that RoH shrugged it off, as soon as they learned about an issue they took measures, they just weren't informed. The claimant had pre-existing hearing damage, refused to wear the supplied custom plugs, refused to share his medical auditory history and did not avail himself of the long-standing "just walk out" policy. Be that as it may, after 2 days, one of which they did Die Valkurie, he finally used his custom plugs and then his foam ones and then said it was still too loud. RoH immediately made individual doseimeter measurements and changed layout. That isn't just shrugging it off.

 

I think the crux of it is that the pit should never have been set up in the way that it initially was. He should never have had a trumpet bell a foot from his head. It was set up that way for artistic reasons, but when the crew set it up that day it should have been noticed and brought to someone’s attention and the rehearsal delayed until it was sorted, because a problem of this nature should really have been foreseen. I don’t think they shrugged it off, but it shouldn’t have got to that point. I do agree that the claimant is partially at fault as well and could have done a lot more to protect himself.

[TeeJay]

I do not agree that RoH shrugged it off, as soon as they learned about an issue they took measures, they just weren't informed. The claimant had pre-existing hearing damage, refused to wear the supplied custom plugs, refused to share his medical auditory history and did not avail himself of the long-standing "just walk out" policy. Be that as it may, after 2 days, one of which they did Die Valkurie, he finally used his custom plugs and then his foam ones and then said it was still too loud. RoH immediately made individual doseimeter measurements and changed layout. That isn't just shrugging it off.

 

I think the crux of it is that the pit should never have been set up in the way that it initially was. He should never have had a trumpet bell a foot from his head. It was set up that way for artistic reasons, but when the crew set it up that day it should have been noticed and brought to someone’s attention and the rehearsal delayed until it was sorted, because a problem of this nature should really have been foreseen. I don’t think they shrugged it off, but it shouldn’t have got to that point. I do agree that the claimant is partially at fault as well and could have done a lot more to protect himself.

 

The rearrangement of the pit is fairly key to the final decision. Noise measurements taken with the configuration when the incident occurred, and again later for the same piece with a revised layout show a marked decrease in exposure levels. ROH had argued originally that they couldn't change the layout - but obviously did after the incident and the appeals judge picked up on this. Could the ROH have done more? Yes. So could have the claimant.

 

If you have any interest in this case, it is worth reading through the appeals judgement in full.

[Junior8]

If you read para 46 of the judgement you realise everything else is irrelevant to this case. Once the ROH permitted the levels they did they were in breach of the law. This judgement makes an orchestra pit once and for all a place of work under the regulations. Edited May 16, 2019 by Junior8

[Brian]

... And as a place of work the employer MUST enforce rules designed to protect their workers health and well-being (stroppy orchestra or not).

[GridGirl]

I am now on my third attempt to PDF player sound level exposure graphs out of my stupidly complex Excel spreadsheets to send to the players. I'd done the whole brass, percussion and harp sections when I realised the readings for one show were placeholders and I was waiting on readings from our sister orchestra in Melbourne (we haven't done the show before) - fired off an e-mail, got the readings, fed them in (which changed the graphs quite considerably), amended them for the brass because they had trumpets in front of trombones in front of percussion, which we won't, and re-PDF'ed the graphs (same three sections).

 

Then I got to our AP timpani/tutti percussion player's graph, and realised that his graph didn't take into account when he was playing timpani - all readings were the percussion ones. In the process of fixing that (which is doable but a little time consuming), I discovered an error where I'd put the wrong show on one particular date - and of course the one I should have put was a louder show. If it had been quieter, I wouldn't have bothered - but now I have to go through and fix that error in every single player's spreadsheet. I hate my life (and Excel, and noise monitoring) right now.

 

Update: I'm now up to attempt number four. Not happy.

[Stuart91]

I hate my life (and Excel, and noise monitoring) right now.

 

Update: I'm now up to attempt number four. Not happy.

 

It seems like you might benefit from something other than Excel to process all this information. I'm no more than an enthusiastic amateur at this kind of stuff, but I've used Filemaker in similar circumstances, however there are definitely other packages out there which may be better suited to the task.

 

In fact, it would be a great service to the industry if someone came up with a specific app for noise logging - there's probably a market for it.

[GridGirl]

I hate my life (and Excel, and noise monitoring) right now.

 

Update: I'm now up to attempt number four. Not happy.

 

It seems like you might benefit from something other than Excel to process all this information. I'm no more than an enthusiastic amateur at this kind of stuff, but I've used Filemaker in similar circumstances, however there are definitely other packages out there which may be better suited to the task.

 

In fact, it would be a great service to the industry if someone came up with a specific app for noise logging - there's probably a market for it.

 

There probably is a market for it! My Excel spreadsheets are pretty well set up, it’s just that I had made a couple of stupid mistakes which I then didn’t notice until I’d done the find-and-replace to build another eight or so graphs.

[Junior8]

There probably is a market for it! My Excel spreadsheets are pretty well set up, it's just that I had made a couple of stupid mistakes which I then didn't notice until I'd done the find-and-replace to build another eight or so graphs.

 

It was just as easy to do similar in the days of paper and pen. Getting over it is probably a bit quicker these days though!

I just hope the screams of exasperation didn't breach the noise regulations

 

 

[GridGirl]

For interest's sake, I thought I'd upload one of the estimated sound level exposure graphs I've just finished - this is for our upcoming winter opera season. There's a gap in the middle because we go into a season of West Side Story and during non-repertory seasons we have a table which tells us how many shows can be done per week given their sound level reading (we use this in ballet as well) - time-saving in that I don't have to enter the formulas for about 60 shows. WSS is included only where it overlaps the end of the first half of the opera season and the start of the second half (we rehearse WSS under the last week of rep shows, and then start rehearsals under the last week of WSS).

 

The red line is the important one for us - it's the 7-day rolling weekly average, which needs to stay under 85dBA. Blue diamonds are individual days and the blue line is a seasonal average which we don't really pay much attention to. This graph belongs to one of our trumpet players. His weekly average tips over that 85dBA line once (and even then only just) thanks to careful rostering, but also helped by the season's repertoire. I know that this particular player extensively uses the Etymotic Music Pro electronic earplugs, so I don't have any concerns for him. All the players have been sent their graphs and if/where their weekly average is above 85dBA, they have been informed that they need to wear earplugs during that time period (and as much as possible everywhere else as well).

 

As I get up-to-date sound level readings for each opera (this graph is based on previous readings) I'll go through and update and double check for any exceedances which weren't previously there. Time consuming? Yes. Makes me want to throw my computer across the room when I keep finding errors? Yep. But it's ultimately absolutely worth doing.

Trumpet graph SW19.pdf

[paulears]

Your job has really morphed over a quite short time really? What concerns me is the actual data. The employer is keeping this Leo of detail and basing so much on it, yet the subject of the data may decide, or forget to wear the protection. They may also be moonlighting on other gigs where their exposure is not recorded, and then your operation get the blame, possibly lowering exposure levels even more. So many musicians also practice out of the venue. How many might spend an hour at home practicing that one little section they personally, despite their ability level, find tricky. Revealing your weak areas at work is not good, so once out of your control, they may add to their exposure, and you get the blame. It's really good to see the employers taking this level of care and building stats designed to genuinely help, but the fact that you don't have access to their out of work data surely warps the very stats you depend on. Many folks leisure activities involve loud sound. You can't make them wear exposure meters out of work, but until somebody now has hearing issues and takes an employer to court, we won't know if all your hard work will still be enough.

[GridGirl]

Your job has really morphed over a quite short time really? What concerns me is the actual data. The employer is keeping this Leo of detail and basing so much on it, yet the subject of the data may decide, or forget to wear the protection. They may also be moonlighting on other gigs where their exposure is not recorded, and then your operation get the blame, possibly lowering exposure levels even more. So many musicians also practice out of the venue. How many might spend an hour at home practicing that one little section they personally, despite their ability level, find tricky. Revealing your weak areas at work is not good, so once out of your control, they may add to their exposure, and you get the blame. It's really good to see the employers taking this level of care and building stats designed to genuinely help, but the fact that you don't have access to their out of work data surely warps the very stats you depend on. Many folks leisure activities involve loud sound. You can't make them wear exposure meters out of work, but until somebody now has hearing issues and takes an employer to court, we won't know if all your hard work will still be enough.

 

It's untested ground, and very tricky. We back up this data with pretty comprehensive education too - ten days ago we had our friendly audiologist horn player come down for another education session and he consistently tells them that they just have to wear earplugs as much as humanly possible (among other things!). I'd like to think that with the education as well as this comprehensive sound level graphing, that we would be able to prove that we did as much as we could, within that "reasonably practicable" framework. We do also tell them that they need to have their own personal hearing conservation plan, and that we can't do everything for them.

 

Acoustic shock is one thing, but NIHL I think would be far more difficult to prove as having been caused by one specific workplace (or one single call) - it's gradual. So if it did ever get to court, you can bet that the question "did you ever do any work, involving playing your instrument, outside of your job with the orchestra?" would come up. Did you teach? Yes? How many hours a week on average? Do you have any idea how much noise you were exposed to in an average week doing that? How much practice do you do in your own time? Do you wear earplugs while practising? Did your employer issue you with earplugs and educate you on how to use them? Did your employer give you information about your projected sound level exposure, and instruct you about when you were required to be using earplugs? Did your employer provide education around hearing conservation? Did these other gigs that you were doing outside of your full-time work provide you with similar information, or measure your sound level exposure? Did you listen to death metal through headphones at high volumes at any point in your life? Do you use power tools at home, and do you use hearing protection when doing that? Have you been to rock concerts, and did they ever leave you with ringing in your ears afterward? It would be difficult for anyone to lay the blame for NIHL at the feet of one sole employer - I know the burden of proof in a civil case is lower than a criminal case, but I still don't think, unless you lived in a soundproof bubble outside of your workplace, you'd succeed.

[paulears]

I guess it's just like asbestosis - was it caused by something you did in your past, on the balance of probability? I was a witness once, and the judge was very balanced in his viewpoint, explaining in detail that both parties felt passionately their version of events was the right one, and then he said he was very sorry that he had to rule on who's story was the most probable one. When it's a physical injury - deciding blame must be an awful procedure to go through for everyone.

[Stuart91]

I guess it's just like asbestosis - was it caused by something you did in your past, on the balance of probability?

 

I suppose the argument here would be the likelihood of encountering the hazard elsewhere.

 

If you were employed in a brake pad factory for twenty years, but lived a normal live outside work, then the probability of you developing your asbestosis anywhere but that factory is slim.

 

With noise, it's far more prevalent in other areas of life, and especially for players who are musically active elsewhere, so I suspect it would be harder to prove that balance of probability.

 

It might be in the employers interest to gather evidence of noise exposure elsewhere, e.g. social media photos of the player in a rock concert or in a nightclub.