Deafened musician’s compensation upheld

Posted: 17th April 2019

OrchestraArguments that a compensation award to a Royal Opera House (ROH) musician, whose hearing was damaged by exposure to the noise of instruments, will curtail music making have been rejected by the Court of Appeal.

The case concerned a professional viola player who was seated directly in front of the brass section as the ROH orchestra rehearsed Wagner’s Ring Cycle. Amidst the cramped surroundings of the orchestra pit, the excruciatingly loud principal trumpet was directed at the side of his head, causing intense pain in his right ear. Although he was able to complete the session, he felt overwhelmed and confused.

The experience left him hyper-sensitive to noise to the point where he could hardly bear the sound of his own instrument. He felt dizzy on exposure to various types of noise, including loud conversation in a restaurant, and had to move to the country in order to lead a quieter life. He has had to abandon his orchestral career.

After solicitors issued proceedings on his behalf, a judge found that the ROH had in a number of respects failed to comply with its obligations under the Control of Noise at Work Regulations 2005. The noise to which he and other musicians had been exposed during the rehearsal was at least quadruple the recommended level.

In dismissing the ROH’s challenge to that ruling, the Court was unsurprised by the judge’s finding that it had failed in its duty to take steps to reduce noise levels in the orchestra pit to as low a level as was reasonably practicable. It was particularly significant that noise levels were significantly reduced after the musician went off sick and the pit was reconfigured, splitting up the brass instruments.

The ROH, with the support of other musical bodies, had expressed concerns about the likely wider ramifications of a ruling in the musician’s favour. They raised the prospect of the repertoire of the ROH being confined to less noisy works and the curtailment of musical activities in concert halls, theatres and schools.

The Court, however, did not accept that such a cataclysmic scenario reflected a proper understanding of its decision. For most musical venues, space would not be the problem that it is for the ROH and the evidence showed that a comparatively small repositioning of the orchestra had markedly reduced noise levels. The national and international reputation of the ROH would not be affected by the decision.

The Court noted that there was no exemption under the Regulations for the music and entertainment sectors, although they had been given a two-year period of grace, which expired in 2008.

The case has served to underline the obligation of orchestras to comply with the legislation. The amount of the musician’s compensation will be assessed at a further hearing.