The recent conclusions of Goldscheider v the Royal Opera House shook the foundations of the entertainment industry earlier this year.
A viola player claimed he was exposed to unacceptable noise levels in the pit at the Royal Opera House as the orchestra rehearsed Die Walküre (The Valkyrie) in 2012, in the first case of its kind. Goldscheider claimed that he had suffered from “acoustic shock” from the brass section of the orchestra.
The research on “acoustic shock” in the workplace generally only references employees working with high pitched, oscillating tones such as a phone ringing, (Gerling & Jerger (1985); Milhinch (2002); and, Patuzzi et al. (2000)). Acoustic shock has only recently been recognised in a clinical setting, making this ruling of particular interest. In this case, the jury confirmed that “acoustic shock” can be sustained at sound levels as low as 82dB, a significant difference to the current exposure levels listed in the Control of Noise at Work Regulations 2005. If this is the case, why don’t all musicians have acoustic shock?
As a result, Mrs Justice Nicola Davies confirmed that musicians must be instructed to wear hearing protection and that employers of musicians must enforce the wearing of hearing protection. This causes numerous complications for musicians. Employers of musicians have generally given musicians means to protect themselves; providing information on exposure levels, hearing protection and health surveillance, but never strictly enforced the use of hearing protection at all times, during rehearsals, personal practice, performances etc.
In most employer’s eyes, they have given the musician all of the information and means necessary to protect themselves and allowed them to choose when to wear hearing protection.
Enforcement of the use of hearing protection could cause considerable issues for musicians. In discussion with British Safety Council, some leading organisations have told us that their musicians have already indicated significant resistance to wear hearing protection, stating that amongst other reasons, hearing protection impacts the performer’s ability to hear themselves and the other performers around them.
It is feared that performance standards would drop albeit in the immediate term, taking months, if not years, for the brain to adjust to the change of wearing hearing protection while playing, it’s not a quick fix!
The issue is compounded for brass and most wind players whose instruments rely on vibration created by a reed or the player's lips, which passes down the jaw and into the ear. Wearing hearing protectors exacerbates the impact of the vibration, making it louder than the sound of the music. This effect is known as occlusion; the players can only predominantly hear themselves when playing.
The question is, is there anything else employers of musicians can do?
Well, if you were to apply the hierarchy of control to an orchestra and eliminate the hazard, you’d end up listening to John Cage’s “four minutes, thirty-three seconds” – a piece for any combination of instruments where the score instructs the performers not to play their instruments during the entire duration of the piece, throughout the three movements.
If you reduce the amount of time playing or the number of musicians, you impact the quality of the piece and the desired artistic effect the composer intended to create.
Another option would be to isolate every player from others, however this impacts on the ability of the orchestra to play as an ensemble and the overall quality of the music being created.
You can introduce control measures like carpeting, acoustic shields, baffles etc, however in most cases, you will not be able to reduce the exposure to under 85 LEP’d. The only option left is hearing protection, normally the last resort!
This brings in more questions; what is the impact of this ruling on composers? Do they need to consider the musician’s hearing when writing their pieces like designers do on construction projects?
What about conductors and musical directors? How do the findings of the case impact their ability to rehearse the orchestra with an aim to achieve what the composer desired?
Do the employers of musicians now need to completely ban pieces of music from certain composers like Wagner and Tchaikovsky, renowned for their large brass sections?
Mrs Justice Nicola Davies in summarising the case said; “the Regulations [Control of Noise at Work Regulations 2005] recognise no distinction between a factory and an opera house” while I agree with this view, it is the fundamental problem! Noise is an unwanted outcome of an industrial process. Music is sound, something pleasant and attractive and carefully constructed.
An audience doesn’t pay to visit a factory or a construction site and listen to the noise produced by the equipment; the whole purpose of going to listen to a performance is to hear the composer’s work as they intended it. After all, surely playing an instrument affects our hearing the same way as a drill or hammer does?
There are a growing number of research papers that conclude that the effect of music on hearing is completely different to that of noise produced by drills, saws and hammers. (Dance & Dymock, 2015) and (Dance s. , 2016). The hypothesis is that the body has a defense mechanism that kicks in when you actually produce the noise yourself. Therefore, are the regulations still suitable based on the growing amount of research in this area?
This ruling leaves the entertainment industry at a juncture, any campaign to change the Regulation, allowing a pragmatic approach to the enforcement of hearing protection in musicians, must be balanced with a need to ensure that music remains an integral part of the human culture.
There is a precedent of setting exclusions for artistic reasons; the Machinery Directive and Supply of Machinery (Safety) Regulations 2008 does clearly exclude “Machinery intended to move performers during artistic performances” from specific requirements. This perhaps is the only viable route for the entertainment industry to pursue.
After all, in a world where reasonably practicable is measured by outcome versus effort, where is the line drawn on creativity in music and performance?
Call Centre Research/Deloitte and Touche, C. G. (1998). Call Centre Agent report. Sydney, Call Centre Research/Deloitte and Touche Consulting Group.
Dance, s. (2016). Facing the Music: Helping classical musicians comply with the Control of Noise at Work Regulations. INTER-NOISE and NOISE-CON Congress and Conference Proceedings, 5848-6840.
Dance, S., & Dymock, B. (2015). Sound exposure and the hearing of musicians. Proc. 10th Euronoise, Maastricht, 1725 - 1730.
Gerling, I. J. and J. F. Jerger (1985). "Cordless telephones and acoustic trauma: A case study." Ear & Hearing 6(4): 203-205.
Milhinch, J. C. (2002). Acoustic Shock Injury: Real or Imaginary?. Audiology Online.
Patuzzi, R., J. Milhinch, et al. (2000). Acute Aural Trauma in telephone headset and handset users. Neuro-otological Society of Australia Annual Conference, Melbourne.
By Lawrence Waterman OBE on 22 July 2019
The way in which some people, often young, but not exclusively, are engaged in work is in jobs that are part of what is commonly referred to as the ‘gig economy’.
By Mike Robinson, Chief executive British Safety Council on 17 June 2019
There seems to be something hard-wired in all of us that we look after what we own.
By David Parr, British Safety Council on 04 July 2019
It is now almost two years since the tragic Grenfell tower fire and so an appropriate moment to reflect on the progress —or lack—on implementing subsequent measures to ensure that occupants of high-rise buildings not only feel safe but actually are safe within their homes.