Am I too loud?

Am I too loud?

By: Belinda van der Vyver

“Am I too loud?” is the title of a memoir written by the esteemed English pianist and accompanist, Gerald Moore.  In Goldscheider v Royal Opera House Covent Garden, a decision of the the England and Wales Court of Appeal on 17 April 2019, the court had to consider the same question.

The 2012-13 season at the Royal Opera House, Covent Garden, London (the “ROH“), opened with four cycles of Wagner’s Der Ring des Nibelungen, an opera cycle consisting of four full-length operas.  Rehearsals commenced on 30 August 2012.  By the end of the third day of rehearsals, Mr Goldscheider, a viola player in the ROH orchestra, had suffered high frequency hearing loss in the right ear (acoustic shock) that ended his professional career.

The operas of Wagner’s Der Ring des Nibelungen were written for a large orchestra.  The orchestra pit of the ROH is not very large.  Goldscheider, who played third desk, was seated immediately in front of the brass section, which comprised 18 brass instruments.  There was scarcely any space between Goldscheider and the Principal trumpet (the predominant player of the trumpets, playing at a higher frequency and making a very powerful sound) whose instrument was aimed at and funneled sound directly to Goldscheider’s right ear.

The applicable workplace health and safety regulations required the ROH to provide its employees with personal hearing protectors (a fancy term for earplugs) and, if any employee was likely to be exposed to noise above prescribed limits, to “reduce exposure to as low a level as is reasonably practicable by establishing and implementing a programme of organisational and technical measures which is appropriate to the activity.”

Goldscheider had been provided with custom molded earplugs, with 9 decibel filters.  The ROH also made foam earplugs that filtered around 28 decibels of sound available to all players.  For short bursts of noise from nearby instruments the 28 dB earplugs provided better protection than the 9s. The 28s however made it difficult for the wearer to hear other instruments, particularly in quiet passages, instructions from the conductor and his own instrument, all of which are essential when playing in an orchestra.

On 1 September 2012, having suffered through two days of really loud rehearsals, Goldscheider thought he would experiment by continuously wearing his 9 dB earplugs. Within three seconds of entering the pit for the warm-up he realised the earplugs were ineffective, so he switched to the 28s before the start of the rehearsal proper.  He used them during those parts of the rehearsal when he felt he needed them but even then the noise was overwhelming.  At lunch ROH management was informed of Goldscheider’s complaint.  Sound measurements were taken during the afternoon and these confirmed that the third desk violists were exposed to noise levels above the prescribed limits, and by then the damage to Goldscheider’s hearing had already been done.

Goldscheider claimed damages for personal injury from the ROH in the High Court, and won.  He was the first person in the UK music industry to have made a successful claim for acoustic shock.  The ROH appealed.

In the Court of Appeal it was argued on behalf of the ROH (and the Association of British Orchestras, the Society of London Theatre, and the UK Theatre Association, which had all intervened in the appeal to express concern about the possible wider ramifications in the music industry of the judgment of the High Court) that it had done all that was reasonably practicable to reduce the orchestra members’ exposure to noise given the nature of the activity, which is actually designed to produce noise (with apologies to Wagner fans), unlike other activities such as the use of pneumatic machinery where noise is an unintended by-product.

The Court of Appeal was not swayed by that special pleading, and held that the ROH should have re-arranged the orchestra players to leave a space between players in the viola section and the brass section, as the ROH had indeed done several days after Goldscheider’s injury, as a result of further complaints by other violists.  The appeal was dismissed.

Happily or sadly, depending on one’s perspective, a similar case is unlikely to occur in South Africa, not because workplace health and safety regulation is absent, but because local orchestras are not big enough to stage Wagner’s Ring cycle.

Also in this issue:

More quotes from Ronald Coase

Who you gonna call

When constitutional rights are in conflict

The ambiguous comma

Who Must Stay, Who Must Go?