Goldscheider v The Royal Opera House Covent Garden Foundation

Mr Parker was until 2015 a Consultant Ear Nose and Throat Surgeon at the Royal Hallamshire Hospital in Sheffield, he continues to practise independently within the NHS and privately. He remains a senior lecturer in otolaryngology at the University of Sheffield. He has a medico-legal practice working both for claimants and defendants. On 16 May 2014 he examined the claimant. He told Mr Parker that when he finished the rehearsal on Saturday 1 September he felt that his right ear was not as it should be, he was experiencing pain, dizziness and feeling strange, there was a blocked sensation. The claimant’s account of his disability included the following:

Examination showed no hearing loss on a one-to-one basis, no evidence of external or middle-ear disease. There was diffuse unsteadiness on Romberg’s test without lateralisation, on Unterberger’s test the claimant deviated to the right. Pure-tone audiogram showed some high frequency hearing loss in both ears, significantly worse in the right. Mr Parker concluded that the constellation of symptoms which the claimant developed are consistent with acoustic shock in his right ear.

Acoustic shock is the mechanism of injury from which the symptoms flow. The injury involves the inner-ear and comprises cellular and/or biochemical changes. There has to be an acoustic incident, the sudden onset of loud noise for which the person is unprepared. This is followed by an acoustic startle, a vestigial innate response to the threat of potential injury. The nature of acoustic shock injury is a physiological response to noise. The ear is over stimulated, it builds up a stock of toxic metabolites and from a physiological response it can move to the infliction of damage. The threshold varies for each individual. The physical response to damage to the ear can comprise deafness, pain, tinnitus or dizziness or a combination of two or more.

The noise would be loud, generally unexpected but something extra was needed to get under the stapedius reflex and the unprepared central nervous system, often in the presence of an individual with anxiety, psychological issues or stress. The unexpected noise was that of the Principal trumpet, who was playing from different music which the claimant would not have seen. The claimant would not be familiar with the music of the trumpet because he would not know the trumpet part. The bell of the trumpet is loud. In rehearsal, how the playing occurs would depend upon the conductor’s interpretation. The claimant would not know when the trumpet was about to get loud. In Mr Parker’s opinion what had occurred was an index exposure, a cluster of short duration, high intensity sounds which presented to the inner ear. The claimant had not suffered a dramatic shift which would be apparent on audiometric testing, nor a dramatic disruption of function, it was not a hydrops loss.

In concluding that the claimant has suffered acoustic shock Mr Parker had not assumed a specific sound level. It was loud or very loud and fell within reported levels as producing acoustic shock.

Mr Parker produced published reports in the medical literature of cases of acoustic shock and commentary upon the condition. The publications are identified in the Appendix to this judgment and summaries of their contents are included. The first reported cases of acoustic shock were published by an Australian audiologist, Milhinch, in 2002. In 2006 an Australian audiologist, Westcott, published a paper entitled “Acoustic Shock Injury” which, like Milhinch, reported the injury as occurring in call centres. There, call centre operators, using a telephone headset or handset, were at increased likelihood of exposure close to their ear or ears of sudden unexpected loud sounds randomly transmitted via the telephone line. In 2007 a peerreviewed British paper on the subject of acoustic shock was published by McFerran and Baguley. The Abstract records:

“Acoustic shock is a recently recognised clinical entity: following an abrupt, intense and unanticipated acoustic stimulus, usually delivered by a telephone handset or headset, some individuals report a symptom cluster that includes otalgia, altered hearing, aural fullness, imbalance, tinnitus, dislike or even fear of loud noises, and anxiety and/or depression. Symptoms start shortly after the triggering acoustic incident and can be short-lived or can last for a considerable time. If persistent, the condition can lead to significant disability… A formal treatment program has not yet been proposed, but the potential utility of modern therapeutic techniques for tinnitus and hyperacusis are considered…”

In the 2008 current edition of what was described as the foremost ENT textbook in the United Kingdom, Scott-Browns Otorhinolaryngology, Head and Neck Surgery, the problem of acoustic shock is recognised and its symptoms identified. In 2014 Mr Parker, with three authors, published an article in the International Journal of Audiology entitled “‘Acoustic shock’, a new occupational disease? Observations from clinical and medico-legal practice”.

Mr Parker referred to the McFerran and Baguley paper as identifying the fact that an individual did not have to be a telephone operator in order to develop acoustic shock. It could occur as a result of a single or a cluster of sounds, a clustering of acoustic incidents. The paper records that there are sufficient differences in the symptom complex to warrant the recognition of acoustic shock as a separate condition in its own right rather than a subsection of an existing condition. It states that it is currently under-recognised and anecdotally patients often complain of having their symptoms ignored.

Of his own paper Mr Parker said it was the largest series of patients outside Australia and India. He did not accept that all the patients arose in a medico-legal context, some came from clinical practice. The case notes were reviewed by himself and by an audio-vestibular physician. Mr Parker accepted that within the condition known as acoustic shock there is psychological overlay. However, he distinguished the claimant from such overlay. He is a man who was motivated to get better, he had been enjoying his job, there were no problems with it nor with his playing ability. Within acoustic shock are a cluster of symptoms which, save for hearing loss, are subjective in that there cannot be an objective measurement of tinnitus or hyperacusis (a heightened awareness of sound). Mr Parker generally agreed with the description contained in the McFerran and Baguley paper which stated:

“Noises that generate acoustic shock do not have an intensity and duration profile that would be regarded as dangerous to the auditory system within the framework of existing workplace legislation. In this respect, it is important to distinguish acoustic shock from acute acoustic trauma that is experienced with exposure to extremely loud sounds, over 140 dB. Similarly, acoustic shock is unrelated to noise-induced hearing loss, in which repeated exposure to sounds of an intensity greater than 85 dB causes cochlear damage.”

In his oral evidence he relied upon the Milhinch paper as providing a range of 82 dB to 120 dB sufficient to cause acoustic shock.

Acoustic trauma is recognised as occurring at between 137 dB to 140 dB, peak action levels. The noise levels are so high as to physically damage the structure of the ear, for example perforation of eardrum, structural distortion of the inner ear.

It was suggested that when the claimant presented to his GP, Mr Rubin and Professor Saeed he was giving the impression that he had been subjected to a huge noise dose and the doctors assumed he had suffered acoustic trauma. To that Mr Parker said that senior and experienced practitioners would not diagnose acoustic trauma on the noise levels reported by the claimant.

The GP record of 4 September 2012 stated:

“Viola player in Royal Orchestra, on Saturday music was too loud and despite earplugs, since Sunday has felt pressure/whooshing in the ears, hearing loss, no tinnitus, no discahrge (sic), pain below ear on right. No headaches, no fevers. Otherwise well … explaied (sic) likely eustachian tube dys and trial stemetil…”

Mr Parker said that the pressure or “whooshing” in the ears was tinnitus.

On 6 September 2012 the claimant saw Mr Rubin. Mr Rubin’s letter to the claimant’s GP included the following:

“He noted discomfort in his ears (particularly the right ear) on Friday; this increased on Saturday and he also began to feel unstable as the week-end progressed. He has a sense of fullness in his right ear and unsteadiness. … On examination both ear-drums appeared intact and air-filled. … an audiogram demonstrated a high frequency hearing loss in the right ear, which is slightly worse than a prior audiogram supplied by Ms Grierson of 2010. He notes that in the intervening time was exposed to loud noise in that right ear, so it is conceivable that he had some acoustic trauma in between the prior audiogram and the recent one. … my impression is cochlear irritation and presumed acoustic trauma. I discussed this with Professor Shak

On 10 September 2012 Mr Rubin saw the claimant who had completed his course of steroids. He was noted as still having a sense of increased sensitisation of his right ear to sounds. An audiogram taken that day again demonstrated a high frequency hearing loss in the right ear. Mr Rubin notes:

“At this point my sense is that Mr Goldscheider would be best served by staying in a quiet environment and not exerting himself for the next couple of weeks. I have not put him on any particular medications … I am asking if Professor Saeed would be willing to see him…”

On 14 September 2012 the claimant collapsed when travelling on the tube. He attended the A&E department at the Royal Free Hospital. He was seen by a specialist ENT Registrar, the doctors queried whether it was a viral episode, the Registrar noted “no tinnitus”. Mr Parker said the incident was a vasovagal episode, sensory overload, too much noise. It was put to Mr Parker that this was an episode of Meniere’s disease. He disagreed and said that the ENT Registrar had not diagnosed Meniere’s disease.

On 26 September 2012 the GP notes record “pain much better and hearing improving”. It was suggested to Mr Parker that this note represented an improvement in the claimant’s condition which demonstrated that it was of fluctuating nature and therefore consistent with Meniere’s disease. Mr Parker’s understanding of the claimant’s evidence was that there was no improvement in his disease.

Professor Saeed, Professor of Otology and Neuro-otology at University College London Ear Institute, Consultant ENT and Skull Bone Surgeon at the RNTNEH, saw the claimant on 18 October 2012. In a letter to his GP he recorded that the claimant’s problems started on 1 September during a rehearsal during which time he was sitting just in front of the trumpet section of the orchestra, it continued:

“The rehearsal lasted around six hours and for the remaining part of the day Mr Goldscheider felt generally unwell with some imbalance and discomfort behind his right ear. There was a feeling of fullness in the right ear with possibly diminished hearing. …For the last ten days he has had high pitched whistling tinnitus and finds that when he is playing viola there is marked hyperacusis with some distortion. …His hearing was diminished more so on the right side. The tinnitus is constant and causing sleep disturbance and his hyperacusis remains troublesome. There is no previous history of otologic problems and his general health is good. …general ENT examination was unremarkable. Neuro-otological assessment was interesting in that whilst there was no spontaneous nystagmus he was certainly unsteady on Romberg’s testing with an Unterberger’s test positive to the left. Repeat audiometry today shows a high frequency hearing impairment on the right side from 4 kHz onwards and a notched high frequency change on the left which may be more longstanding. In view of the symptoms and the events around the weekend of 1 September my feeling is that there has been some cochlearvestibular biochemical changes with possible secondary hydrops. …”

Mr Parker said that Professor Saeed’s view was that no structural identifiable defect had been found. Identified were subtle changes in biochemistry in the inner-ear with possibly secondary hydrops. If the hydrops was secondary it could not be idiopathic as there would be a defined primary cause.

On 14 February 2013 an entry in the GP notes indicates a history of:

“…acoustic trauma with permanent hearing loss Right ear, hyperacusis and tinnitus. PT was improving and had returned to work – with lower decibel from string part of orchestra. Over last 1-2 days increasing hyperacusis and tinnitus andacute onset vertigo and pain in r earm [sic], similar to initial episode. …PT very distressed and wnats [sic] to see Prof Saeed again at Harley Street, won’t be covered by insurance. PT worried will lose career if takes more time off work. To d/w Dr Russell.”

It was put to Mr Parker that this was another example of improvement in the claimant’s condition. Mr Parker said the claimant was managing his symptoms as told to do on his hospital visits by avoiding the precipitants or those which could exacerbate his symptoms. When he returned to the orchestra his symptoms increased. The note did not indicate improvement of his hearing loss, Mr Parker would expect some improvement in the hyperacusis. An individual who suffers from hyperacusis will find that the condition is exacerbated when in an environment with noise. Hyperacusis is a very difficult therapeutic area, it is not susceptible to surgical or medical intervention, it can be modified or modulated by stress, anxiety or depression. Hyperacusis is not a symptom associated with Meniere’s disease, it is not identified in the criteria for the disease.

In May 2013 Professor Saeed reviewed the claimant. He recorded that the claimant had returned to work on 12 March and that his hyperacusis deteriorated as did his tinnitus. He also had some imbalance which was treated symptomatically. Over the previous two months the claimant had been struggling with intrusive hyperacusis, nausea and a background feeling of imbalance, all of which was having a significant effect on his life and work. General ENT examination was again unremarkable. Professor Saeed wrote:

“My feeling is that he may well have a degree of inner-ear hydrops and therefore I have appropriately commenced him on bendrofluazide … I shall also arrange for him to be seen by our Hearing Therapist as a matter of urgency as he clearly is struggling.”

Mr Parker said that what was prescribed was a diuretic used in the treatment of hydrops.

On 21 January 2014 the claimant attended the clinic of Dr Alles, a Consultant Audiovestibular Physician at University College London. In a detailed letter to his general practitioner Dr Alles stated that the claimant had been seen in her clinic on two occasions and had been working closely with her team. The clinical findings were listed as:

“1.

Hyperacusis;

2.

Hearing difficulties worse in the right ear;

3.

Tinnitus;

4.

Right aural pressure sensation;

5.

Problems with balance.

Above symptoms triggered by exposure to noise.”

Of the history of the matter Dr Alles recorded that by the end of 1 September 2012 the claimant was feeling very confused, dizzy, sick and disorientated whilst travelling home and these symptoms persisted the following day. By the evening of the first day he noted a difficulty hearing in the right ear. He could not recall having tinnitus at the time. The hyperacusis began the following day (Sunday) by which time he was feeling shell-shocked, unwell, dizzy and confused. He phoned the workplace on the Monday and reported feeling unwell. Dr Alles records that the high frequency tinnitus is mainly in the left ear, the claimant is aware of hearing difficulties in his right ear. The claimant has no ongoing problems with balance but is slightly unsteady on first waking in the morning.

Mr Parker described Dr Alles’ report as a thorough and inquiring consultation, an evaluation of clinical facts. There was no proposal to investigate the claimant for

Mr Jones retired from clinical practice in 2012. He was a Consultant ENT Surgeon for the University Hospital of South Manchester NHS Foundation Trust. He has considerable experience of medico-legal matters. Mr Jones saw the claimant on 6 April 2016. The claimant’s main problem was hyperacusis which he would rate at 90 per cent of his overall problems. His tinnitus is a problem at night and in the quiet. His hearing loss is a problem in noise and groups. He is unable to use hearing aids because of hyperacusis. The tinnitus arose a few days after the incident, worsened progressively and has now been the same for several years.

In his account to Mr Jones the claimant told him that the bell of the principal trumpeter’s instrument was 10 inches away directly behind him. The sound seemed to go into his right ear. The claimant’s symptoms have been very severe but were and are virtually unilateral which in Mr Jones’ opinion excludes anything other than completely unilateral exposure as a likely cause of the claimant’s symptoms, whatever the mechanism. The claimant told Mr Jones that he could not remember any problems before the Saturday although the sound was loud on Friday. On the Saturday morning the music was very loud, he was fed up with the noise and walked around at lunchtime. He wore a noise monitor in the afternoon when the noise was “incredibly loud”. To duck away from the noise he placed his head between his knees. He wore the ear protection during loud passages and would remove them in the quiet passages or to talk to the conductor. He noticed discomfort during the afternoon session, he felt strange on the journey home, slightly disorientated and was worse the next morning. On Monday the claimant was dizzy, pressure and pain were present in his right ear and he was unsteady on his feet. He did not notice tinnitus until two to three weeks later, it became worse over the first year and has been much the same since then. His hyperacusis became rapidly worse over a week or a month, since the rapid worsening it has been steady but always worse if he attempts to play music. His balance was worse, his partner would recognise when episodes of imbalance were coming on as he would go grey. He noticed hearing loss only in his right ear, his hearing has been at a constant level for the last two to three years. Everything sounds muffled.

In his report Mr Jones states:

“Mr Parker states Mr Goldscheider’s symptoms are all consistent with acoustic shock. They are not. Genuine hearing loss is not a part of acoustic shock, neither is genuine imbalance. …his symptoms are not entirely typical of Meniere’s but with pressure, imbalance, tinnitus and hearing loss that is the closest condition to his symptoms described in otological textbooks and I am happy to adopt any other term which can be demonstrated to match his symptoms better.

Hydrops is not caused by acoustic shock. …if acoustic shock exists he cannot have it because the circumstances in which it arose were completely incompatible with this condition as it is described because there was no shock or startle. …Acoustic shock is basically alleged to occur in unprotected subjects wearing headphones, typically call centre workers, exposed suddenly and unexpectedly to unpleasant and brief loud noise. While it was originally claimed that this syndrome could involve genuine hearing loss and genuine vertigo, this was rapidly dropped when it was realised it was impossible for such noise levels to cause such damage and all that is claimed in modern times is that acoustic shock may involve sensation of imbalance or an impression of muffled or abnormal hearing not accompanied by hearing loss as confirmed on pure tone audiometry.

…

Whereas AT (acoustic trauma) and NIPTS (noise-induced hearing loss) are well-attested and investigated there is no good evidence that acoustic shock exists. So far as it is described, it is not possible in this case because the circumstances were not those described as necessary for acoustic shock which Mr Parker refers to at times as acoustic startle which I think is a unique use of the terms although Westmacott has described acoustic startle as the cause of acoustic shock but not as a

separate condition. There was nothing unexpected or untoward about his noise exposure. He has clearly had similar noise exposures in the past without developing any such symptoms. He was wearing protection not earphones. The sound was not unpleasant. There is no evidence of NIPTS (aka NIHL), acoustic trauma or acoustic shock.

There is no doubt he has a genuine hearing loss and has had genuine balance problems and these have arisen from an organic disorder in the right inner ear. It appears the left inner ear has not been involved at all or, if it has, to a very much lesser extent and yet the exposure must have been symmetrical again requiring engineering confirmation. There is no evidence on the audiograms of the bilateral symmetrical loss commensurate with NIPTS or AT and genuine hearing loss is not caused by acoustic shock. … There is no doubt that he has had a disorder of his right inner ear involving both the hearing part, the cochlea and the peripheral vestibular system, the balance part and that his symptoms are closest to those described in Meniere’s syndrome although not entirely typical of the latter. … Meniere’s syndrome or hydrops is characteristically unilateral but may become bilateral as time passes, certainly usually asymmetric at the start. The only logical explanation for what has happened in this case is that he was developing his first episode of hydrops at the time of the rehearsals. The other point which is quite clear from the records is that his symptoms increased some time after the alleged causative traumatic episode, did not come on simultaneously, have developed, fluctuated, recurred and persisted over time all in a way inconsistent with NIHL, acoustic trauma or acoustic shock (although initially too early in onset for delayed hydrops).

Neither acoustic trauma nor NIHL are directly associated with imbalance. If delayed hydrops following acoustic trauma occurred the symptoms could then develop and progress. However, the evidence is that this condition almost certainly does not exist, there was no delay in his symptoms where before the noise in the afternoon. …his symptoms are all genuine but are not due to that afternoon’s playing of music.”

Following a meeting with Mr Parker at which there was little agreement, Mr Jones wrote:

“My view from the start has been that with the exception of hyperacusis, which is described as a primary symptom of socalled acoustic shock, Mr Goldscheider’s symptoms are all primary symptoms of and explained by only one of the possible diagnoses raised and that is Meniere’s syndrome or endolymphatic hydrops.

Meniere’s sufferers when symptomatic find loud, or even slightly loud, noise uncomfortable distortion; and overrecruitment i.e. louder sounds appear even louder to a normally hearing subject. Given the devastating effect of this condition on his career and that he, not unreasonably although wrongly, attributes the symptoms to loud noise, it is not surprising that Mr Goldscheider has gone on to develop hyperacusis which commonly accompanies bothersome tinnitus.

In my view there is no causal connection between the rehearsal that day and his symptoms and it is not surprising that they developed during a rehearsal in a professional musician, so could a cold. The real point is that if this were the cause he should have had symptoms long ago.

…

There is no good evidence that this syndrome [AS] exists. If it does then it is not the cause of Mr Goldscheider’s problems for several reasons:

•

It cannot be the cause of some of his symptoms;

•

The rehearsal noise is very far from that claimed to cause AS;

•

AS allegedly does not require a very high noise level; hence

•

It would have occurred in earlier rehearsals;

•

Later noise would have cause the symptoms anyway.

…

Meniere’s syndrome

This is usually unilateral or at least asymmetric initially and is characterised by an initially fluctuating low frequency loss with a later permanent loss often involving the high frequencies more, tinnitus, imbalance usually with true rotary vertigo and a feeling of pressure in the ear, the hearing is often distorted and loud sound may be more uncomfortable than before. Meniere’s is not due to the noise exposure but arising at that time could cause the sound of the music to be much more uncomfortable than it would otherwise have been. …”

In his evidence to the Court Mr Jones said that some people do believe acoustic shock exists but he thought the evidence that it exists is not there. Insofar as there are reported symptoms related to acoustic shock, for example fullness in the ear, nausea, vomiting, distorted hearing, those are supposed to start immediately or within the first few hours. That does not match the claimant’s complaint of his symptoms. On the claimant’s account his hearing got worse on the Sunday. On 26 September 2012 the GP records that his hearing had improved, that better fitted a diagnosis of Meniere’s disease rather than acoustic shock. The medical records indicate that the claimant’s tinnitus and vertigo varied, his hearing loss improved and varied. These militated against a diagnosis of acoustic shock.

Mr Parker stated that pre-2012 audiometry demonstrates high frequency hearing loss in the claimant’s left ear and a noise notch at 4 kHz, consistent with noise-induced hearing loss. On the right there is high frequency hearing loss. In the left ear the hearing is normal up to 2 kHz but at 3 kHz it represents noise-induced hearing loss. In the right ear the hearing is well preserved across the spectrum. Low frequency would be up to 1 to 2 kHz. For a diagnosis of Meniere’s disease one would look for a heavy loss at low frequency or predominantly low frequency. High frequency would be at 4, 6 or 8 kHz and pre the incident was well preserved. In 2012 the hearing in the left ear is unchanged. In the right ear it has become worse but not by a massive amount. The audiograms are nothing like the audiograms for a patient with Meniere’s disease. The audiogram taken in 2012 does not demonstrate hydrops.

Mr Platt QC put to Mr Parker the proposition that hearing loss is not a part of the diagnosis of acoustic shock. In the McFerran and Baguley paper Mr Parker accepted that hearing loss was relatively uncommon. In his paper a sizeable proportion of the 30 patients had hearing loss. The predominant features in Mr Parker’s review were tinnitus, otalgia, deafness and hyperacusis. He agreed with Professor Saeed that a possible cause would be hydrops but he did not think it was probable. It was as Professor Saeed described it “possible”.

Mr Jones did not dispute Mr Parker’s interpretation of the audiograms. The loss in the left ear is virtually identical in the 2010 and 2012 audiograms. It is typical of noise-induced hearing loss but represents very good levels for high frequencies. On the right the loss up to 2 kHz reflects good constitutional hearing. Between 2 and 8 kHz on the right there are reduced levels but not as much as the 2010 loss of hearing levels on the left between 6 and 8 kHz. The loss at 3 and 4 kHz on the left is absent on the right. The 2010 pattern in the right ear is not indicative of noise-induced hearing loss.

In evidence was a table identifying predicted hearing loss caused as a result of noise levels at 85 dB and 90 dB. 4 kHz is the most sensitive figure at which noise affects the human ear. Over a ten-year period of exposure at 90 dB there is a 50 per cent chance of an 11 dB hearing loss. To the decline in the claimant’s right ear shown in the audiograms for 2010 and 2012 which at 4 kHz demonstrates a 14 dB loss, Mr Jones said Meniere’s disease was the most likely cause.

Asked for the cause of the high frequency loss shown in the 2012 audiogram in the right ear Mr Jones said the most likely explanation is that it is associated with the incident, it is probably the event that day (1 September 2012).

A paper published in 2015 identifies the diagnostic criteria for Meniere’s disease jointly formulated by national committees/societies as follows:

“Criteria for diagnosis of Meniere’s disease Definite MD:

A

two or more spontaneous episodes of vertigo, each lasting 20 minutes to 12 hours.

B

audiometrically documented low-to medium-frequency sensorineural hearing loss in one ear, defining the effected ear on at least one occasion before, during or after one of the episodes of vertigo.

C

fluctuating aural symptoms (hearing, tinnitus or fullness, in the affected ear).

D

not better accounted for by another vestibular diagnosis.

…

Probable MD

A

two or more episodes of vertigo or dizziness, each lasting 20 minutes to 24 hours.

B

audiometrically documented low-to medium-

frequency sensorineural hearing loss in one ear, defining the effected ear on at least one occasion before, during or after one of the episodes of vertigo.

C

fluctuating aural symptoms (hearing, tinnitus or fullness, in the affected ear).

D

not better accounted for by another vestibular

diagnosis.”

Mr Jones said the claimant fitted the three criteria for probable Meniere’s disease, he does not have low frequency hearing loss. As to the criteria for definite Meniere’s disease, the fact that low frequency hearing loss is not present does not mean that the claimant does not have Meniere’s disease, its presence would be powerful evidence that he does. Mr Jones did not accept that Meniere’s disease is a residual diagnosis, it has a cluster of distinct features. He accepted that the definite and probable criteria

Mr Jones accepted that the claimant did not present with a history of fluctuating hearing loss but there was a history of fluctuation in balance. In the description of Meniere’s disease in the Scott-Brown textbook the only fluctuating symptom identified is that of hearing loss. The claimant’s symptoms are relatively typical but not wholly classical Meniere’s disease.

Mr Parker said that if it is Meniere’s disease it has to be hydrops. Hydrops is an over accumulation of fluid in part of the inner ear which causes pressure and results in the rupture of membranes. Meniere’s disease is idiopathic, it is diagnosed when symptoms do not have an identified cause. In identifying Meniere’s disease a clinician would look for vertigo lasting 20 minutes to 24 hours, a fluctuating hearing loss in the lower frequency and tinnitus.

In Mr Parker’s opinion the claimant was not suffering from Meniere’s disease. He gave a number of reasons:

Mr Parker described it as significant that another person in the same desk developed symptoms following an acoustic incident and exposure to noise. This further undermined a suggestion that Meniere’s disease was the diagnosis.

The claimant told Mr Parker that the sensitivity to sound, dizziness, pain and discomfort and hearing loss occurred straight away, the tinnitus came later, there is a clear account of it in the GP’s Record on 4 September. He accepted that the claimant’s balance had improved but did not accept it was episodic. There were multiple references in the medical records to the constancy of the symptoms. As to the criteria C the 2015 paper, namely fluctuating aural symptoms, hearing, tinnitus or fullness, there was fluctuation in the fullness criteria but not in hearing or tinnitus. As

The only bilateral sign experienced by the claimant is tinnitus. Unilateral symptoms make the diagnosis of acoustic shock more plausible. It was Mr Parker’s understanding from what he was told by the claimant that the alleged index exposure was principally to his right ear.

Breaches of the 2005 Regulations are at the heart of this case and provide the simplest answer to the liability issues. The defendant is in breach of virtually every obligation under the 2005 Regulations. The defendant is in breach of its obligations as employer under the Management of Health and Safety at Work Regulations 1999 and/or Workplace (Health, Safety and Welfare) Regulations 1992; the similar obligations under the 1989 Regulations and its common law duties. The 2005 Regulations take precedence in noise matters and govern the noise issues as at 2012. The claimant invites the Court only to consider the remaining allegations of breach of duty under the earlier regulations or at common law if not satisfied as to the claimant’s case under the 2005 Regulations with one exception, namely risk assessment under Regulation 3(1) of the Management of Health and Safety at Work Regulations 1999.

The claimant’s case remains as pleaded in the Particulars of Noise Exposure set out in paragraph 2 of the Particulars of Claim, paragraph 3 above. The pleaded excess of regulatory EAVs has not been challenged. The claimant accepts that the averment of excess regulatory peak levels is not supported by the noise report.

The risk to health is that of foreseeable personal injury, it is not confined to any particular type of injury: Page v Smith [1996] 1 AC 155. The personal injury is noise damage to hearing of any type.

As to the defendant’s duty, and what is “reasonably practicable”, the focus is on what can be done not what is convenient, whether on financial or other grounds. In Baker v Quantum [2011] UKSC 17, a case concerning the question of what is reasonably practicable to make/keep a workplace “safe” within the meaning of the Factories Act 1937 and 1961, the statutory meaning was stated to be very similar to that of the common law test of reasonableness, save that the burden to plead and prove that a given step is not reasonably practicable lies upon the employer/defendant: Lord Mance [76] citing Nimmo v Alexander Cowan & Sons Ltd [1968] 1 AC 107 (HL). In the context of this case the issue is what was reasonably practicable to lower the risk of noise damage to hearing. The defendant has not proved that the steps that could have been taken to reduce the risk of injury to the claimant’s hearing were not reasonably practicable.

The 2005 Regulations make it the primary overriding obligation of the employer to eliminate hazardous noises at source regardless of whether that noise reaches an EAV. The provisions are deliberately protective and aimed at eliminating risk even where

The risk assessment requirements are detailed. The defendant, in its manager Mr Downes, failed to ensure that the statutory risk assessment was properly carried out. It was undated and uncertified, prepared for productions and not rehearsals. It failed to take proper account of venue, rehearsal, the orchestra pit and the highly directional brass sound. It was done without obtaining any sensible assessment or measurement of likely actual or potential volumes of noise. Mr Downes’ assumption that the upper EAV of 85 dB(A)Lepd would be exceeded does not assist the defendant because this leads to reliance upon hearing protection which the Regulations state the employer is not to do. It ignores peak level assessments, it fails to assess the nature and extent of risks so as to inform decisions about reasonably practicable steps to be taken to eliminate/reduce the risk of hazards. No reassessment was undertaken following the change configuration of the brass instruments.

The measurements in the noise report taken at the afternoon rehearsal of 1 September demonstrate that the claimant was exposed to noise levels which gave rise to substantial risk of injury. Risk arose when, after half an hour, the claimant’s noise exposure, ignoring the effects of personal hearing protection, reached the lower EAV of 80 dB(A)Lepd. The risk to which section 6(1) refers is that referred to in Regulation 3(1) i.e. “the risk to person’s health and safety arising from exposure to noise at work”. It is not limited to the more usual risks arising from exposure to loud noise. The employer is bound to take a broad view of potential noise risks. In view of the levels measured at the time the claimant fell ill, there can be no doubt that he was exposed to a risk to his health as a result of the level of noise to which he was exposed, ignoring the effects of personal ear protectors, Regulation 6(1) was engaged.

The obligation pursuant to Regulation 6(1) is to eliminate the risk at source. The source of the noise was the orchestra’s instruments. Steps which could have been taken included playing quieter, creating more space, managing the rehearsal to prevent sustained loud passages.

Following complaints, the afternoon rehearsal could have been postponed or carefully monitored from the outset, more effective hearing protection including ear monitors could have been provided. The afternoon noise measurements demonstrate that the average level across the three hours amounted to 92.2 dB(A), four times as much sound pressure as 85 dB(A). Regulation 6(2) was engaged. It required the claimant’s noise exposure to be reduced by measures appropriate to the activity “excluding the provision of personal ear protectors”. The only measure introduced by the defendant to reduce the claimant’s exposure to noise was the provision of personal ear protectors. The defendant was in breach of its duty pursuant to Regulation 6(2). Following complaints by viola players the orchestra seating plan was rearranged. There is no evidence that it had not been reasonably practicable to have so arranged the seating before. By February 2013 screens were being trialled, there is no evidence that it had not been reasonably practicable to have used such screens in 2012. By

The claimant relies upon the defendant’s acknowledgement of its failure to comply with the statutory noise threshold as identified in the summary prepared by Sally Mitchell on 23 November 2013 (paragraph 60 above).

Given Mr Downes’ assessment that the employees were likely to be exposed to noise at or above an upper EAV the orchestra pit should have been designated a Hearing Protection Zone pursuant to Regulation 7(3). A sign indicating that hearing protection must be worn should have been in place, access to the area should have been restricted where practicable. The employer should have ensured, so far as was reasonably practicable, that no employee entered that area unless that he/she was wearing personal hearing protectors. The defendant did not designate, demarcate or identify the orchestra pit or any area within it as a Hearing Protection Zone. No signs indicating that ear protection must be worn were in place, no attempt to restrict access to the area unless hearing protection was worn was made.

In so far as it is acceptable, as a last resort, to control noise risks with hearing protection the same must be suitable and adequate. The system of hearing protection adopted by the defendant was wholly inadequate, permitting musicians to insert protection in response to pain is unacceptable and not consistent with modern health and safety methods. The evidence of the claimant was that he had no real understanding of noise risks and how to guard against them, this relates to the inadequate training which he received.

It is accepted that the claimant and his colleagues were subject to health surveillance and the claimant always complied with it. The claimant contends that the system was inadequate, it failed to bring to the attention of management important matters which demonstrated ongoing problems and future vulnerability. For “confidentiality” reasons the defendant denied itself the opportunity to consider and review the individual and group results of the health surveillance as a means of ongoing assessment of the effectiveness of its noise control methods.

The defendant provided no evidence of the content of any training session or course. It did not call its health and safety manager. The Court cannot be satisfied that the training satisfied the requirements of Regulation 10(1) and (2).

The provisions of section 1 of the 2006 Act add nothing to the pre-existing law. The factors identified will be taken into account by the Court in the balancing exercise when considering what is reasonable or reasonably practicable: Uren v Corporate Leisure (UK Limited) [2011] EWCA Civ 66. Refurbishment took place in the late1990s yet steps were not taken to design the area in which the musicians work so as to eliminate noise risks or minimise them so far as is reasonably practicable. The defendant has advanced no evidence that artistic values of productions of its operas, specifically those in the Ring Cycle, would in 2012 or now be reduced by steps taken to eliminate or reduce noise exposure from that created by the configuration of musicians in amongst whom the claimant was rehearsing on Saturday 1 September.

The reliance upon “artistic value” implies that statutory health and safety requirements must cede to the needs and wishes of the artistic output of the opera company, its managers and conductors. Such a stance is unacceptable, musicians are entitled to the protection of the law as is any other worker. The employees are subject to instruction, set rehearsal times and performance hours.

The central allegation made by the claimant, in the Particulars of Claim and his witness statement, was that the hearing protection he used was inadequate properly to protect him from noise. It is not that he failed to wear the hearing protection or did not wear it properly. It is the claimant’s pleaded case that he made full and proper use of the hearing protection provided by the defendant.

The key duties owed by the defendant under the 2005 Regulations are qualified by the reasonable practicability test, the leading guidance upon which is that of Lord Mance in Baker v Quantum (above) as follows:

“76.

…if the workplace is unsafe, then the burden shifts to the employer to show that it was not reasonably practicable to make and keep it safe…

…

78.

…The standard of reasonableness expressed in the qualification ‘so far as is reasonably practicable’ (in respect of which the onus of proof is on the employer) makes it more, rather than less, likely in my view that the concept of safety is itself to be judged, as Lord Upjohn thought obvious in Nimmo, by reference to what would, according to the knowledge and standards of the relevant time, have been regarded as safe...

…

80.

In summary, safety must, in my view, be judged according to the general knowledge and standards of the times. The onus is on the employee to show that the workplace was unsafe in this basic sense.

(iv)

Reasonably practicable

81.

Since it took the view that safety is absolute and unchanging, the Court of Appeal had to consider whether the qualification ‘so far as is reasonably practicable’ enabled the employers to exonerate themselves by showing that reasonable employers would not have considered that there was cause to reduce

noise exposure in the workplace below 90dB(A). The Court of Appeal held that the qualification gave no scope for such a defence. …

82.

… Even the Court of Appeal in its formulation acknowledged the quantum of risk involved as material in the balancing exercise. But this can only mean that some degree of risk may be acceptable, and what degree can only depend on current standards. The criteria relevant to reasonable practicability must on any view very largely reflect the criteria relevant to satisfaction of the common law duty to take care. Both require consideration of the nature, gravity and imminence of the risk and its consequences, as well as of the nature and proportionality of the steps by which it might be addressed, and a balancing of the one against the other. Respectable general practice is no more than a factor, having more or less weight according to the circumstances, which may, on any view at common law, guide the court when performing this balancing exercise...

83.

That the qualification ‘so far as may be reasonably practicable’ may, if necessary, receive a broad interpretation is also indicated by the reasoning of the House in Marshall v Gotham Co Ltd [1954] AC 360. Under the Metalliferous Mines General Regulations 1938 (SR & O No 630) the roof and sides of every travelling road in a mine were required to be made secure. An employee was killed by a fall of roof, due to the presence of an unusual geological condition known as ‘slickenside’, which there was no known means of detecting prior to a fall. It was argued that the mine-owner could have propped all roofs, and that ‘reasonably practicable’ meant no more than ‘practicable’ (p 364). The argument was rejected. Lord Oaksey at p 370 agreed with Jenkins LJ’s statement, [1953] 1 WB 167, 179, that what ‘is “reasonably practicable” in this context is no more nor less than what is capable of being done to make roofs and sides secure within the limits of what it is reasonable to do; and it cannot be reasonable to do for this purpose anything more than that which it appears necessary and sufficient to do according to the best assessment of what is necessary and sufficient that can be made at the relevant time, that is, in the present instance a point of time immediately prior to the accident’. Lord Reid at p 373 said that ‘if a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable’ and took into account that the danger was a very rare one, that the trouble and expense involved in the use of the precautions, while not prohibitive, would have been considerable, that the precautions would not have afforded anything like complete protection against the danger, and that their adoption would have had the disadvantage of giving a false sense of security. Lord Keith considered at p 378 that there was ‘no general rule or test that can safely be relied on for measuring the discharge of such a duty’, but that he ‘could not, as at present advised, accept … that the measure of an employer’s liability can satisfactorily be determined by having regard solely to the proportion which the risk to be apprehended bears to the sacrifice in money, time or trouble involved in meeting the risk’. Lord Tucker (with whom

Lord Cohen agreed at p 377) said at pp 374-375 ‘that the word

“secure” does not involve security from the effects of earthquake or an atom bomb’, but added that ‘it must include security from all the known geological hazards inherent in mining operations’. At p 376 he echoed the list of factors which Lord Reid had identified in support of his conclusion that the precautions were not reasonably practicable.

84.

A further aspect of para 84 in Smith LJ’s judgment is the suggestion that ‘there must be at least a substantial disproportion’ before the desirability of taking precautions can be outweighed by other considerations. This theme was developed in paras 82 to 84 of her judgment, on the basis of dicta in two cases prior to Marshall v Gotham. But it represents, in my view, an unjustified gloss on statutory wording which requires the employer simply to show that he did all that was reasonably practicable.”

The defendant relies upon the words of Sedley LJ in Bhatt v Fontain Motors [2010] EWCA Civ 863 observed at [39] to [41]:

“39.

In relation to his comment in paragraph 32 about the burden of proof in relation to what is reasonably practicable, it may be that there is, and needs to be, no fixed allocation of the burden. It will depend on what has happened and the situation in which it has happened.

40.

There will be some cases in which it is open to, and arguably incumbent on, the claimant to say what ought to have been done by the defendant and why. There will be others in which the event itself calls for an explanation by the defendant of why it was not reasonably practicable to have guarded against it. In both kinds of case it will then be for the defendant to show why it was not reasonably practicable to take the step in question. In many cases the burden will shift as the evidence unfolds.

41.

In other words, the reason why there is no formal legal allocation of the burden of proof may well be that judges and practitioners recognise that reasonable practicability is a protean concept which has to be addressed case by case.”

It is the defendant’s submission that where it has adduced evidence as to the precautions which were taken as part of the precautions against high level sound, many of which were scarcely challenged the burden then moves to the claimant to challenge this or adduce evidence as to why such steps are not reasonably practicable. The claimant has failed to do this.

The claimant’s evidence is that he sustained acoustic shock which could be caused by a peak exposure in the range of 82-120 dB. These are not noise levels which the defendant could reasonably have been expected to try to ameliorate. There is nothing in the extensive available guidance to suggest that acoustic shock is a recognised risk for musicians which the defendant should have been aware of. There has never been a case of acoustic shock in the music industry. The defendant’s conduct should reasonably have been governed by the risk of established conditions, namely noiseinduced hearing loss, associated with long term exposure, or the risk of acoustic trauma, associated with a peak exposure in excess of 135 dB(C). These are the hazards against which the legislation is directed. Exposure at 90 dB(A)Lepd on a daily basis would only be expected to cause a small amount of noise-induced hearing loss after a period of ten years. There was no foreseeable risk of injury posed by such a level of exposure in the context of a single day’s rehearsal, particularly when hearing protection was worn. This is relevant to the defendant’s collaborative, incremental and reactive approach to planning, a reasonable approach because there was no foreseeable risk of acute or immediate injury at the noise levels in question.

The defendant has invested significant time and resources in seeking to ameliorate the sound issue. The most significant step is whether it would be practicable to carry out building works which would increase the size of the orchestra pit. The Arup report indicated that reduction in decibel levels would have been extremely modest, for violas such changes would have been almost zero. Mr Beard’s evidence was the financial costs would have exceeded £50 million in lost revenue and construction costs. The defendant operates as a registered charity on a break-even basis and this sort of expense is prohibitive. The provision of screens and Baffles have not proved successful. The defendant’s contention is this: “In the end, there has been no option other than the use of hearing protection despite the large amount of time and money spent on alternative solutions.”

The defendant has engaged with its employees as to noise issues in a collaborative and communicative way. This is the most effective means of reducing the relevant risks it is more productive than a dictatorial approach.

Relevant to section 1 of the 2006 Act is the evidence of Mr Beard and the defendant’s status as a national institution creating music of the highest quality encapsulated in the defendant’s written submissions as follows:

“The Court should recognise the great cultural value which the defendant’s endeavours have to society and consider this value as being of importance when setting the standard which the defendant should reasonably meet. Some of those most invested in the defendant’s endeavours are the musicians. They are partners and stakeholders with the defendant in the pursuit of the highest possible standards, motivated by such concerns as much as the defendant itself. It would be perverse if the imposition of unrealistic standards jeopardised the very enterprise which gives such meaning and satisfaction to the lives of the employees which the standards seek to protect.”

The 2005 Regulations and their applicability to the defendant as an employer are not disputed.

It is accepted that the defendant had a duty to make a suitable and sufficient risk assessment relating to noise. The defendant fulfilled this duty when Mr Downes carried out the risk assessment. Mr Downes was trained on the production of risk assessment at a five-day IOSH course in October/November 2009. As to the claimant’s criticism that there was no specific measuring of noise levels prior to completion of the risk assessment, Regulation 5(2)(c) requires it only when “necessary”. It would have been impossible to attempt to obtain an accurate measurement of the noise levels in the rehearsal process for risk assessment purposes. Every rehearsal is different depending upon which section of the work the conductor may choose to concentrate on, the number and length of the interruptions to the music as the conductor communicates with players, what dynamic the music is played at, which passages require repeating. The data could not be used as a guide to noise levels at other times. Nothing in the published guidance suggests that it is necessary or appropriate to premeasure noise levels at the start of the rehearsal process. Noise readings were not “necessary” for the purpose of the Regulations.

The readings would not have assisted with the risk assessment process. Mr Downes’ approach being to note that there was a significant likelihood of the upper EAV being exceeded and accordingly, (i) all possible control measures should be taken to reduce noise levels and (ii) the players should be provided with and instructed to wear suitable hearing protection, was sensible. Even if noise monitoring had been carried out at the first Die Walküre rehearsal on the Friday this would not have provoked a different response by the defendant as there were no complaints about the noise level at the first rehearsal. A breach of duty in failing to measure the noise levels at the start of the Die Walküre rehearsal process would not reasonably have made any difference to the claimant’s exposure.

Regulation 6 requires the defendant to reduce noise levels in the pit so far as was reasonably practicable by means of organisational and technical measures. The Regulation limits the required limits to those “appropriate to the activity”. The evidence of Mr Worthington establishes that the level of sound to which the claimant would have been exposed given his pattern of wearing earplugs would have been 6870 dB(A), that is both very low and a safe level of exposure. No purpose would be served in making it lower, it was as low as the Regulations demand.

Further, on the evidence the defendant took all reasonable steps which it could to reduce the exposure to noise in the pit. There was no single solution and the defendant worked hard over a number of years to explore and experiment with all potential steps which could reduce noise exposure. Ms Mitchell’s evidence that “It is an iterative, evolving process and we are always trying to experiment … we have clearly been working very seriously on this issue for many years – and we have in no way taken our foot off the accelerator” is the evidence which the defendant invites the Court to accept. The defendant relies upon the fact that there is no real criticism by the claimant’s witnesses of the efforts made by the defendant to reduce noise levels.

Mr Downes’ draft pit plan was a reasonable attempt to balance the competing and complex factors which had to be taken into account when organising a pit. The plan produced was not one which Mr Downes should have realised was unsafe, there is no right or wrong answer when producing a draft pit plan for the players to consider. The defendant was not in breach of the duty to take all reasonably practicable steps to reduce noise levels when Mr Downes produced this plan. Relevant is the fact it was provisional, musicians would be provided with a chance to comment on the proposed plan both in the abstract and to raise any difficulties encountered in the course of the rehearsal process. Mr Downes is an expert in and highly experienced in respect of pit planning. Had the plan posed a risk of excessive noise exposure which would have been apparent from the mere printed plan objection could have been taken to it in July when it was available for the orchestra to consider.

The claimant’s criticism of the layout should be viewed in the context in which it arose. When the claimant brought his claim it was that the pit plan changed between the Das Rheingold and Die Walküre rehearsals. It is now accepted that the pit plan for Das Rheingold and Die Walküre were the same. The change in the claimant’s position was simply because he moved one row to the back row of the viola players. It follows that nothing had struck the claimant nor anyone else that there was anything unusual about the pit plan prior to the start of the Die Walküre rehearsal despite him having played two feet away from the relevant area for a day and a half. It would be to set a very high standard upon Mr Downes to find that he should have been aware of a problem when setting the plan as a whole which none of the players themselves considered to be a problem after playing in three, three-hour Das Rheingold rehearsals. The rehearsal in which the complaint arose was the fifth Wagner rehearsal using the unmodified pit plan.

As to the comments of the viola player in the same desk as the claimant as recorded in the accident investigation form, she stated that she wore 25 dB earplugs at all times in the course of the rehearsals on 1 September and still found the noise to be too loud. The evidence of Mr Worthington was that if she did indeed wear protection of this attenuation throughout then the dosimetry readings show she would have been exposed to only around 68-70 dB. It is accepted by the defendant that a problem was perceived by the relevant players on Saturday and by lunchtime the viola desk had caused the issue to be raised with Mr Downes.

Once the problem was raised at Saturday lunchtime it is the defendant’s case that Mr Downes acted reasonably by deciding to measure noise levels in the afternoon before considering the pit plan further. There was no report of injury or illness at lunchtime on the Saturday, there was no foreseeable risk of any injury occurring in the course of a further three hours of rehearsal. Any change needed to be thought through carefully

The evidence demonstrates that the defendant has made great efforts to experiment with an array of different screens and Baffles but they do not offer a complete or comprehensive solution to the problem of noise exposure. The defendant took all reasonably practicable steps to reduce the noise levels, the standards to which the defendant’s efforts should be held is one of reasonableness not perfection. It examined all organisational and technical measures that were reasonable in accordance with Regulation 2, this included the use of screens and Baffles, consideration being given to expanding the pit and pit planning itself. None have been found to be effective to materially reduce the sound levels at reasonable costs. As such Regulation 7(2) is triggered and the defendant was entitled to resort to hearing protection. By doing so the levels of sound were reduced to under 85 dB(A). Given these circumstances the sound levels were therefore reduced to as low a level as was reasonably practicable within the provisions of Regulation 6(1). The evidence of Mr Worthington is that they would have been around 68-70 dB(A). The peak levels were never even crossed without earplug attenuation, at this level of exposure there was no conceivable risk, there is no breach of duty.

The defendant approaches Regulation 7 by stating that:

“The Regulations do not require that hearing protection be worn whenever an employee is likely to be exposed to noise over the UEAV of 85 dB(A)Lepd. Rather Regulation 7(3) states that in the circumstances the employer ‘shall ensure sofar as is reasonably practicable that no employee enters that area unless that employee is wearing personal hearing protectors’.”

The claimant, Mr Wall and Mr Downes agreed that it was not reasonably practicable for all the players to wear hearing protection all of the time. The approach which the defendant adopted with its musicians in the light of these difficulties was collaborative and cooperative. The approach resulted in an increase in the extent to which hearing protection was worn and is consistent with the industry guidance published by the HSE, the BBC and the Association of British Orchestras. The claimant’s case, namely that the defendant should enforce the blanket wearing of hearing protection for all players in the pits at all times in the course of the rehearsal or performance whenever a single member of the orchestra was likely to be exposed over the upper EAV is wholly impractical. It is not reasonably practicable for the purpose of Regulation 7(3). It would be impossible to enforce the wearing of hearing protection unless a member of the defendant’s staff was standing next to the players in the pit itself. It is not possible to walk around the employees at work and check they

Mr Platt QC described Regulation 7(3) as “difficult”. The defendant accepts that the requirement formally to designate an area a Hearing Protection Zone pursuant to Regulation 7(3)(a) and to put up a sign pursuant to 7(3)(b) does not appear to be qualified by reasonably practicability. That is said to be dependent on what is defined as “workplace” and this is likely to be the claimant’s station. It would be impossible to put up and take down signs depending on which operas and rehearsals were being undertaken. Such a workplace cannot be demarcated as this would render the pit impossible to operate. The reasonable practicability concept imported into the final sentence of the Regulation should apply to the remainder to give it proper sense. The relevant HSE statutory guidance indicates that such zones can be temporary in nature and sometimes it is not practical to mark the boundaries of a zone:

“…in situations where the boundaries of the zone cannot be marked, e.g. where the work requires people to move the noise sources round a great deal, you should make adequate alternative arrangements to help make sure that people know where or when protectors should be worn. These could include … written verbal instructions on how to recognise where and when protectors should be worn.” (L108-2593/432)

The defendant concludes its written submissions on this Regulation thus:

“In any event any failure to put up a sign is a wholly sterile allegation with no possible bearing on the Claimant’s injuries. The Defendant complied with a causatively relevant duty in relation to hearing protection under regulation 7(3), and in any event the Claimant did in fact wear hearing protection at all material times.”

The training and information which the claimant received in relation to noise risks was comprehensive. The claimant’s pleaded case is that he made full and proper use of the hearing protection provided to him. On 13 March 2012 the claimant was sent advice, namely to wear hearing protection for the whole of sessions if average noise exposure was likely to be over 85 dB (check 1/354). The evidence of Mr Downes and Ms Mitchell was that the defendant consistently advised musicians to wear the hearing protection provided as much as possible whenever they were exposed to high levels of music. Mr Downes’:

“Our recommendation always was that our musicians should wear their hearing protection for the fullest possible time that they could be exposed to loud music.”

“I know that throughout my career, once I had been trained, the advice that I always gave was that you need to wear your protection for the full duration of the time you are exposed to potentially harmful noise.” Ms Mitchell:

“In those 1-2-1 conversations, I would always say that the reason we were trying to encourage 9s was that they fit the ear better and that we want you to try and wear them all the time rather than taking them out.”

“Did you give that message to the claimant? …Yes, I am absolutely sure I would have given that message to him, as I did with the other players in their 1-2-1s.”

No separate case is made at common law as the duties cannot be higher than under the 2005 Regulations.

The object of the 2005 Regulations is set out in Regulation 3(1):

“These Regulations shall have effect with a view to protecting persons against a risk to their health and safety arising from exposure to noise at work.”

The risk to health is that of foreseeable personal injury, it is not confined to any particular type of injury: Page v Smith [1996] 1 AC 155. In the context of this case the injury is noise damage to hearing. It is not limited to noise-induced hearing loss in the sense of the sensorineural hearing loss resulting from longer-term exposure to noise. The 2005 Regulations place a duty upon the defendant as employer in respect of its employees. Within the Regulations, for example Regulations 6, 7, the employer’s duty can be qualified by what is “reasonably practicable”. In Baker v Quantum (above) Lord Mance at [76] citing Nimmo v Alexander Cowan & Sons Ltd [1968] 1 AC 107 (HL) stated that:

“…if the workplace is unsafe, then the burden shifts to the employer to show that it was not reasonably practicable to make and keep it safe.”

Pursuant to Regulations 6(1) and (2) the primary obligation of the employer is to eliminate the risk from the exposure of his employees to noise at source or, where this is not reasonably practicable, to reduce the noise to as low a level as is reasonably practicable. The provisions are protective and are aimed at eliminating risk even where the same is small. In the Health and Safety Executive Guidance “Controlling noise at work” published in respect of the 2005 Regulations (“the HSE Guidance”) it is stated:

“80.

You should not consider the exposure limit values to be a target for your noise control programme – remember that regulations 6(1) and 6(2) require you to reduce risks and exposures to as low a level as is reasonably practicable.” Regulation 5

Fundamental to the proper approach to health and safety at work to be undertaken by an employer is the requirement in Regulation 5 to carry out an assessment of the risk to the health and safety of employees created by the exposure to noise at the workplace. Regulation 5(3) details the requirements of the assessment. The HSE Guidance indicates what is required for a suitable and sufficient assessment:

“40.

An assessment will be suitable and sufficient if it:

(a)

has been drawn up by someone who is competent to carry out the task;

(b)

is based on advice and information from competent sources;

(c)

identifies where there may be a risk from noise and who is likely to be affected;

(d)

contains a reliable estimate of your employees’ noise exposures and a comparison of exposure with the exposure action values and limit values;

(e)

identifies the measures necessary to eliminate risks and exposures or reduce them to as low a level as is reasonably practicable;

(f)

identifies those employees who need to be provided with health surveillance and whether any employees are at particular risk.

…

42.

Your risk assessment must contain an assessment of the noise levels to which your employees are exposed, for comparison with the exposure action values. Where exposure varies from day to day you will need to assess the various daily exposures, taking into account both a typical day and a worstcase day. More detailed advice on assessing noise exposure is given in Part 2.

43.

You are not required to make a highly precise or definitive assessment of individual employees’ noise exposure, such as would be obtained by making detailed measurements. Your assessment of exposure must be a reliable estimate with sufficient precision for you to be able to show whether exposure action values are likely to be exceeded. Your assessment of exposure will only be reliable if it uses data which is reasonably representative of individuals’ exposure. You would be expected to use data from measurements of noise where other sources cannot give you reliable and representative data.

44.

Uncertainties in an assessment of exposure to noise can arise from variability in the level of noise and in the duration of exposure. If you assess exposure as being close to an EAV then you should proceed as if the EAV has been exceeded, or ensure that your assessment is sufficiently precise to demonstrate that exposure is below the EAV.

47.

The Noise Regulations require you to make measurements of noise ‘if necessary’. Measurements will be necessary if you cannot make a reliable estimate of your employees’ exposure in other ways. You may also wish to use measurements to demonstrate that the noise exposure is below a particular value so that you can assure yourself and others that you are complying with the Noise Regulations, and if you require confirmation that your control actions have reduced exposure.

48.

You should ensure that any measurements are carried out by someone who is competent, ie someone who has the relevant skills, knowledge and experience to undertake measurements in your particular working environment. More detailed advice on measuring noise in the workplace is in Appendix 1.”

The risk assessment completed by Mr Downes in respect of the performance of Die Walküre identified three hazards, one of which was noise. The hazard is generally identified, namely that “musicians in the orchestra pit could sustain hearing damage as they could be exposed to noise levels in excess of those prescribed in the 2005 Regulations”. The severity and likelihood of the risk without a control measure was identified as creating a likelihood of major injury. In completing the risk assessment Mr Downes expected the noise levels to exceed the prescribed EAV and worked upon this basis. That was his evidence, it was a general statement which took little or no account of the specific requirements set out in Regulation 5(3)(a) namely to consider the level, type and duration of exposure including any exposure to peak sound pressure. The readings taken on 1 September 2012 demonstrate that there were peaks above 120 dB. Mr Worthington stated that if the readings had been extended to include peaks in the ranges 100 dB and above then “the whole graph would be covered in them”. There is no good evidence upon which to find that Mr Downes, having made the assumption that noise levels would exceed the prescribed upper EAV, specifically considered the level, type and duration of exposure to noise nor the nature and extent of risk which the same created. Such consideration would have better informed his decision as to control measures and any reasonably practicable steps to be taken to eliminate/reduce the risk. This failure is the more acute as the rehearsals were to commence in the absence of any noise measurements.

Regulation 5(1) states that the risk assessment “shall identify the measures which need to be taken to meet the requirements of these regulations”. Listed in Mr Downes’ risk assessment are six control measures, only one of which specifically applied to the claimant, namely the provision of a variety of earplugs. The control measures are generic in nature, save for the final point in respect of side elevators. Further, given Mr Downes’ acceptance that the pit was cramped the first measure, namely maximising space, represents what can only be an expression of hope rather than expectation.

The risk assessment was prepared for a production, it did not include rehearsals. There is no reference in the assessment to considerations which would be applicable to rehearsals, for example repetition of loud passages. In the HSE publication Sound Advice it is recommended that employers “carry out a noise risk assessment and take steps to ensure that exposure to sound is reduced as much as possible during warmups and rehearsals”. Mr Downes completed the risk assessment in the absence of specific measurements. It is said that none would have been of use in the context of a rehearsal given the variability of activities and noises. I accept that no two rehearsals will be the same and that limited assistance will be provided as to noise levels. That said, this was a new orchestral configuration. No noise data existed from previous productions. Given the expectation that the noise levels would exceed the upper EAV in my judgment it would have been reasonable to monitor the noise levels at the first rehearsal and thereafter at the first rehearsal of different parts of the Ring Cycle in order to gauge the level and type of exposure to noise.

Absent from this assessment is any recognition of the fact that as employees were likely to be exposed to noise at or above an upper EAV the employer was under a duty to ensure that the area was designated a Hearing Protection Zone (Regulation 7(3)(a)). Asked why this was not done Mr Downes said that he could not give an answer. Given his assessment of noise and the mandatory wording of Regulations 7(3)(a) and (b) the area of the orchestra pit should have been designated a Hearing Protection Zone and should have been demarcated and identified by means of a sign for the purpose of indicating that ear protection must be worn. The wording of these Regulations is clear, these duties are not subject to the concept of reasonable practicability. There is nothing in this risk assessment nor in the defendant’s evidence to the Court which provides any basis for a finding that those responsible for assessing risk and control measures during the performance or these rehearsals gave any or any proper consideration to the provisions of Regulations 7(3)(a) and (b). The defendant’s submission that such a zone should have been confined to the claimant’s workplace ignores the evidence of Mr Downes as to the level of noise identified in his assessment of the orchestra as a whole.

Regulation 7 requires, as far as is reasonably practicable, that no employee enters the zone unless he/she is wearing personal hearing protection. In the risk assessment the additional control measures required are to “encourage the musicians to wear their plugs for the duration of each production, as this is the only way to realistically reduce exposure”. This wording does not reflect the stringent requirements of Regulation 7(3). I find that the failure to: (a) identify the area as a Hearing Protection Zone together with the absence of appropriate signage; and (b) impose more stringent requirements for the wearing of hearing protection does represent a breach of

I find there was a breach of Regulation 5(3)(a) in that the risk assessment did not include specific consideration of the level, type and duration of exposure including peak sound pressure. Regulation 5(4) requires the assessment to be regularly reviewed and if there is reason to suspect that it is no longer valid changes should be made. No amendment was made to the original risk assessment when changes were made to the orchestral configuration following the claimant’s incident. This represents a breach of Regulation 5(4) but one which is not causative of the events of 1 September. However, it is reflective of the care with which this document was completed, as is the fact that Mr Downes did not sign or date the assessment nor identify himself as the “Responsible Manager” as required. Mr Downes’ explanation for his failure to date and sign was that this was an electronic document. That will not do. In my view, it is a reflection of the care which he brought to the task of completing this risk assessment.

The identified breaches of Regulation 5 are such as to lead me to conclude that the risk assessment prepared by Mr Downes for the production of Die Walküre 2012 was not a suitable or sufficient assessment of risk so as to comply with Regulation 5 of the 2005 Regulations.

The measurements set out in paragraph 11 demonstrate that the average noise level to which the claimant was exposed during the 3 hours, 15 minutes and 24 seconds of the total measurement period was 91.8 dB(A)Leq. The figures identify the times within which the lower and upper EAVs were reached without the wearing of personal hearing protectors. The measured exposure time related to the afternoon rehearsal, there was exposure during the morning rehearsal, a total rehearsal period of six hours. The defendant could not eliminate the risk from the exposure of noise at source at the rehearsal on 1 September 2012 given that it emanated from an instrument or instruments of the defendant’s orchestra. HSE Sound Advice recommends playing quieter at rehearsals. The defendant concedes that it would be physically possible to have performed the piece at a lower level of sound but averred that playing quieter would have unreasonably compromised the artistic output of the orchestra. There is no evidence that such a course was contemplated at the rehearsals on 1 September. In the meeting between Sir Antonio Pappano and Mr Downes, which resulted in the revised orchestral configuration, there is no note of any discussion regarding the safety of the musicians in the new configuration. In the 2012 BBC Publication “Musicians’ guide to noise and hearing, Toolkit for managers” the rearrangement of sections to reduce noise includes:

“Single vs. double ranking the brass: ideally the trumpets and trombones should be in a straight line as it is preferable to have more space in front; if there is limited space (and if risers permit it) a curved line can help to increase lateral space. On the other hand if there is too much space the brass ensemble suffers and it increases the number of string players in the firing line.”

There is no evidence to suggest this issue was considered.

Following the complaints on the Saturday morning and knowing the pit was cramped the afternoon rehearsal could have been postponed to allow for reconfiguration. This was not considered practical. The afternoon rehearsal could have been monitored from the outset using handheld noise meters in the area of the violas to provide live

The primary duty pursuant to Regulation 6(1) is to be judged not only by reference to the EAVs, it is a general obligation to do everything reasonably practicable to remove the risk of any form of noise injury. By reason of the matters set out in paragraph 200 and 201 above, in particular the failure to obtain live time readings, I am not satisfied that the defendant did everything that could reasonably practicably have been done to reduce the risk of noise at the rehearsal on the afternoon of 1 September 2012.

Regulation 6(2) was engaged by reason of the claimant’s exposure to the noise levels in excess of 85 dB(A)Lepd. It required the claimant’s noise exposure to be reduced by measures appropriate to the activity excluding the provision of personal hearing protectors. The only measure introduced by the defendant to reduce the claimant’s exposure to noise was the provision of personal hearing protectors. Prima facie, the defendant is in breach of Regulation 6(2). This was a large orchestra, 96 players plus one conductor. 90 were in the orchestra pit, 6 were adjacent to or raised above the pit. The statement in the risk assessment that “the orchestra pit has been laid out to maximise available space between musicians…” represents wishful thinking rather than practical application. I find that the defendant was in breach of Regulation 6(2).

I am grateful to the ROH who facilitated a site visit to the Opera House, in particular to the orchestra pit during the course of the hearing. The pit was set up for a production of Giselle comprising 70 musicians. The overhang is significant and impacts not only on the physical height of the pit but upon a sense of space. Even at 70 players space within the pit was not generous. I have no difficulty accepting that the addition of another 20-plus players would have resulted in a cramped pit.

From the time of the meeting between the Musical Director and Mr Downes, the management and Musical Director would have known that a large orchestra was to be employed, they would have known the pit would be cramped, they knew the opera contained loud passages. Save for the provision of earplugs, left to the discretion of musicians as to when they should be worn, no steps were taken to immediately reduce the noise of the Saturday afternoon rehearsal even when the problem had been brought to the attention of management. The primary consideration of the new orchestral configuration was artistic. There is a stated wish to maintain the highest artistic standards in order to maintain the ROH’s reputation and attract internationally renowned singers and conductors. Of itself this is laudable. The difficultly arises when such artistic requirements result in a risk to the health and safety of the ROH’s employees. This tension was acknowledged. I accept that the ROH took steps to genuinely address its obligations pursuant to the 2005 Regulations. I read and listened to the honest and earnest evidence of Ms Mitchell and Mr Downes. I read the unchallenged statement of Mr Beard. Having done so I am left with a sense that the

The wording of Regulation 7(3)(a) and (b) is clear. If an employee is likely to be exposed to noise at or above an upper EAV the employer shall ensure that the area is designated a Hearing Protection Zone, is demarcated and identified by means of the sign specified for the purpose of indicating that hearing protection must be worn. I have set out my findings as to the breaches in paragraphs 196 and 197 above. In the detailed evidence given by Ms Mitchell and Mr Downes as to the steps attempted or taken by the ROH over the years to reduce noise there appears to have been no consideration given to the requirements of Regulation 7(3)(a) to (c). In my view this is a matter upon which Mr Lunn, the Health and Safety Advisor of the ROH, could have been questioned had Mr Platt QC called him to give evidence.

I do not accept the defendant’s contention that the alleged breach of Regulation 7 is a sterile allegation. The mandatory requirements have been breached. The Regulations recognise no distinction as between a factory and an opera house. As at the date of the claimant’s accident a breach of the 2005 Regulations provided a basis for a claim in civil liability. Breaches of Regulation 7(3)(a) and (b) are directly relevant to the instruction given to employees for the wearing of personal hearing protectors in the orchestra pit. This Regulation places a more onerous duty on the employer not only in terms of demarcation but in the context of the signage, the instruction it gives to its employees prior to entering the demarcated area, namely that ear protection must be worn. I find that the management of the ROH had not focused properly or at all on these provisions, the instruction given to its employees did not reflect the stringent requirements of Regulation 7(3)(b).

The failure to properly consider the provisions of Regulation 7(3) and the need to give instruction consistent with it impacts upon Regulation 10, namely the information, instruction and training provided to employees. There is no evidence from the claimant or the defendant that advice or training consistent with the requirements of Regulation 7(3) and the imperative to wear hearing protection in a Hearing Protection Zone was given to any employee.

A consistent theme throughout the evidence of Ms Mitchell and Mr Downes was that musicians will judge for themselves when to wear hearing protection provided by the ROH and that monitoring the use of the same in the orchestra pit is unrealistic. I accept the spirit and honesty of their evidence. It meets the requirements of Regulation 7(1). Insofar as the claimant is concerned, hearing protection was provided, Regulation 7(2) is met. The problems for the defendant are Regulations 7(3)(a) to (c). If management does not fully appreciate or take steps to implement the requirements of the Regulations it cannot fully or properly inform and instruct its musicians as to the imperative nature of the need to wear the protection within what should have been a designated area. This is where the defendant failed.

The claimant and his colleagues were subject to health surveillance, the claimant underwent audiometric testing and accepted the provision of earplugs. There is nothing in Regulation 9 which requires the results of that surveillance to be disclosed to persons other than those in occupational health. The highest the claimant can put his case is that in respect of Regulation 10 the information, instruction and training provided shall include the collective results of any health surveillance undertaken in accordance with Regulation 9 in a form calculated to prevent those results from being identified in relation to a particular person. The defendant’s evidence is that the confidentiality of the results was observed for reasons which are referable to the sensitivity of its employees and their future employment. It was only if there was a particular concern or a grouping of musicians where hearing loss was being found that such information would be passed to management. I regard the approach of the defendant as sensitive to patient confidentiality and proportionate. I do not find that in respecting the confidentiality of employees, save in limited circumstances, they breached Regulation 10. There was no duty in respect of Regulation 9 to disclose the results of health surveillance.

The claimant contends the defendant provided no evidence of the content of any training session or course. It did not call its Health and Safety Manager, thus the Court cannot be satisfied that the training satisfied the requirements of Regulations 10(1) and (2). The defendant has provided detail of courses/meetings attended by the claimant and the provision of written guidance relating to noise exposure. I accept that the defendant took steps to inform its employees of the risks of noise exposure and the need to wear hearing protection. Where the information and instruction failed was in respect of the defendant’s obligations arising from Regulations 7(3)(a) to (c). I note the terms of the letter sent with the provisional schedule by the Orchestra Manager in March 2012 (paragraph 47 above) namely:

“For shows where the average noise exposure is over 85 dB you should wear hearing protection for the whole of the session…”

Firstly this uses the word “should” rather than “must” and secondly its effect is diluted by the evidence of Ms Mitchell and Mr Downes to the effect that the wearing of earplugs was left to the judgment of the individual musician.

I find that the ROH did not inform the claimant, nor it would appear other orchestra players, of the mandatory requirement to wear hearing protection when the noise was likely to be above the upper EAV. It is not enough to leave the issue to the musicians to judge for themselves, they should have been informed of the strict requirement and the need for it, an instruction which should have been replicated in signage in and around the orchestra pit at the time of the rehearsal on 1 September 2012. For these reasons I find that there is a breach of Regulation 10(1).

I have found that the defendant was in breach of Regulations 5, 6, 7 and 10 of the

Regulations. The defendant’s reliance upon section 1 of the Compensation Act

provides no assistance in respect of a failure to carry out a sufficient risk assessment, its failure to immediately live time monitor noise levels in the area of the violas at the afternoon rehearsal, its failure to observe and implement the requirements of Regulation 7(3)(a) to (c) which impacted upon the information/instruction given to its employees (Regulation 10). It was these breaches which led directly or contributed to the breaches of Regulation 6.

The claimant is unable to ascribe a single trigger as being causative of the injury to his hearing. He cannot identify a particular peak but identifies the readings between 120 and 130 dB as representing exposure to noise at a high level, in particular noise from brass instruments and within them the Principal trumpet. The levels between 120 and 130 dB created the greatest risk, between 100 and 120 dB there were risks. The claimant contends that the higher the level of risk the greater the preparedness in order to cope with such a risk. Based upon the medical literature it was the evidence of Mr Parker that peak levels between 90 and 130 dB, in particular exposure between 120 and 130 dB, are sufficient to cause acoustic shock injury. The literature reports that noise levels between 82 dB and 120 dB are capable of causing acoustic shock.

The defendant accepts that there are “obvious issues” with “technical breaches” over risk assessment and signage. The evidence is that the defendant would in any event have operated the same system of work including earplugs which would have reduced the exposure levels to around 78 to 80 dB(A) even if one assumes use only during the louder sections. This is sufficient to defeat any allegation of breach of duty, it is not at a level which it is possible to cause any hearing loss. The issues on causation are:

The unchallenged evidence of the claimant is that prior to the rehearsal on 1 September 2012 he had no problems in his right ear nor had he suffered any of the symptoms which developed following the rehearsal on that day. Audiometry in 2010 demonstrated noise-induced hearing loss in the left ear, some unremarkable high frequency loss in the right ear. The audiometry following the 2012 incident demonstrated a high frequency hearing loss in the right ear and a change in the claimant’s hearing which even Mr Jones, the defendant’s medical expert, attributed to the rehearsal on Saturday. The claimant’s evidence was unequivocal, it was the rehearsal on the Saturday afternoon which caused his symptoms to develop and led to his inability to work. It has not been suggested that his symptoms, as described by himself and found by treating clinicians and independent experts, are anything other than genuine.

The claimant’s desk partner wore personalised 25 dB earplugs throughout the entire rehearsal and performance period of the Ring Cycle. She described the noise on 1 September as “unbearably loud” even with her “very heavy duty plugs in”. Following the two rehearsals on 1 September she felt physically sick, her hearing was affected. She stated that she was much more sensitive to noise for a number of weeks after these rehearsals. She told Mr Lunn that the subsequent creation of the 1 metre gap between the brass and back desk of the violas had led to a definite decrease in the noise level. This viola player, who remains in the employment of the ROH, was called by neither party. It was not suggested that her account to Mr Lunn is anything other than truthful.

The evidence is that the level of noise at the rehearsal on 1 September 2012 was such as to cause hearing difficulties and other symptoms to the two musicians seated in the last desk of the violas immediately in front of the trumpets and the banked brass section. I regard it as beyond coincidence that the two viola players should each complain of the level of noise and, resulting from it, problems with hearing. The symptoms suffered by the second viola player reflect two of those experienced by the claimant, nausea and the sensitivity to noise which continued for a number of weeks. This player was continuously wearing 25 dB earplugs. The fact that even these did not prevent injury/damage is a reflection of the high noise level at the viola desk which the defendant’s submissions about likely noise levels fail to undermine. Critically each player identifies the loud noise as the only factor at the rehearsal. The

In my view there is a clear factual and causal link between the identified breaches of the Regulations and the high level of noise which ensued at the rehearsal. It commenced with an inadequate risk assessment, continued with a failure to undertake any monitoring of noise levels in the cramped orchestra pit with a new orchestral configuration which had been chosen for artistic reasons. Even when complaints were raised the three-hour afternoon rehearsal was commenced and completed in the absence of any live time noise monitoring. All of this was done against a background of a failure by the management at the ROH to properly appreciate or act upon the mandatory requirements of Regulation 7(3) of the 2005 Regulations when it knew the noise would exceed the upper EAV.

The claimant wore his earplugs when he felt pain/discomfort or in anticipation of a loud passage. In so doing he was not acting contrary to the advice of the defendant’s managers who left it to the individual musicians to judge for themselves when to use the protection. The defendant’s reliance on the claimant’s pleaded case that he made “full and proper use” of the hearing protection is dependent upon the claimant’s understanding of the advice/instruction given to him by the defendant which I have found to be in breach of Regulation 10. Had the instruction as to the mandatory need to wear hearing protection as required by Regulation 7(3) been given to the claimant he would have been required to wear earplugs continuously throughout the rehearsal which would have reduced his risk of exposure to high noise levels. He did not. That is not a failure for which the claimant can be held liable in the absence of appropriate instruction.

The breaches have been established, the risk identified in the 2005 Regulations has materialised. There was only one agent of harm, namely high level noise. Had the defendant complied with its statutory duty the claimant would not have been exposed to the level of noise which he was. Three issues remain:

Mr Parker contends that the claimant developed acoustic shock as a result of exposure to a cluster of short duration, high intensity sounds in his right ear emanating from the Principal trumpet during the rehearsal. It is the defendant’s contention that the claimant experienced a coincidental onset of an idiopathic condition, namely Meniere’s disease, during the course of the rehearsal. In its closing submissions the defendant postulated a third option, namely that the claimant has failed to prove that his aural condition has been caused by noise.

The concept of acoustic shock is relatively new and thus far primarily associated with reports emanating from call centres. Mr Jones, the defendant’s expert who retired from clinical practice some five and a half years ago, was dismissive of the concept. I

The description of acoustic shock, namely an index exposure to any sound or cluster of sounds of short duration but at a high intensity reflects and is consistent with the evidence of the claimant as to the playing of the Principal trumpet at or close to his right ear. The sound or sounds would have been unexpected because the claimant had only his own musical part in front of him, the trumpet player had his own part. Audiometry following the incident demonstrates changes in the right ear, not reflected in the left ear. I regard the defendant’s contention that Meniere’s disease developed at the rehearsal as stretching the concept of coincidence too far by reason of: (i) the nature of the index exposure and (ii) the fact that the person sitting next to the claimant described the loud noise of the trumpets and the similar physical effect upon her. The level of noise recorded during the afternoon, in particular the peak levels, would be consistent with those reported in the medical literature as causing acoustic shock.

The claimant’s evidence is that his symptoms commenced on Saturday and worsened over the weekend. He saw his GP on Monday. In his first complaint to a doctor he attributes his symptoms to the fact that the music on Saturday was too loud.

The symptoms of which the claimant complains are genuine. One is capable of independent assessment, that is the high frequency hearing loss in his right ear. This is significant. High frequency hearing loss is not one of the identified criteria for Meniere’s disease. It is low/medium frequency hearing loss which is identified for “definite” or “probable” Meniere’s disease. The symptom which has caused and continues to cause the claimant the greatest difficulty is that of hyperacusis. Hyperacusis is not identified as one of the criteria for Meniere’s disease.

The account given by the claimant and the evidence of his attempts to return to work given on behalf of the defendant demonstrate that in 2013 the claimant was making real efforts to return to work and take part in rehearsals and performances. In all of this he was assisted by the defendant. His symptoms are such that he can no longer work as a professional musician in an orchestra and that is accepted by all. The claimant has been the subject of detailed investigation by treating clinicians skilled and experienced in otology none of whom have diagnosed Meniere’s disease. It is right to record that, save for Mr Rubin at the outset identifying acoustic trauma as the source of the claimant’s symptoms, no treating clinician has diagnosed acoustic shock.

I accept that some of the symptoms experienced by the claimant have fluctuated. However, I take account of the claimant’s evidence that following medical advice and recognising the triggers for his symptoms he has changed his lifestyle and daily activities so as to avoid the activities which result in symptomatology. That is demonstrated by the events in 2013 when he attempted to return to work which triggered a deterioration in his condition, well documented in the medical records. I do not conclude that any such fluctuations are sufficient to undermine the finding of acoustic shock given the nature of the index exposure, the absence of low frequency

I am satisfied that the noise levels at the afternoon rehearsal on 1 September 2012 were within the range identified as causing acoustic shock. The index exposure was the playing of the Principal trumpet in the right ear of the claimant whether it was one sound or a cluster of sounds of short duration. It was that exposure which resulted in the claimant sustaining acoustic shock which led to the injury which he sustained and the symptoms which have developed, from which he continues to suffer.

The defendant contends that any condition which the claimant has developed was caused or contributed to by his own negligence in that he failed to heed the instruction, training and information provided by the defendant in relation to noise exposure, he failed to wear the hearing protection at all times, he failed to inform the defendant of any difficulty which he had wearing the hearing protection. To the extent that noise levels at the rehearsals on 1 September 2012 were excessive the claimant failed to immediately alert the defendant to this or to the fact that he felt unwell. He continued to take part in the rehearsals when he knew or should have known that they were or might be causing him harm.

The claimant contends that he wore the hearing protection when he believed the noise level was too loud for comfort or safety, if he failed to wear it at any relevant time that was a consequence of the defendant’s failure to inform the claimant to wear the hearing protection at that time. It is pleaded that the claimant was unaware of any difficulty in wearing the hearing protection provided to him. The pleadings admit that the claimant considered the noise levels during the rehearsals to be excessive and that he failed to alert the defendant immediately that he felt unwell. The claimant admits that he continued to take part in the rehearsals but denies that he did so knowing what he was doing might be causing him harm. He denies that he was reasonably required to leave the rehearsal and reasonably required to refuse to participate further until such time as the defendant reduced the noise levels (to his liking).

Notwithstanding the evidence of Ms Mitchell as to the conversation she recalled having with the claimant some months after his accident it was no part of the claimant’s case that he had a particular difficulty wearing the hearing protection provided. The allegation of contributory negligence which relates to the failure of the claimant to wear hearing protection throughout the rehearsal is dealt with at paragraph 220 above. The manner in which the claimant used the hearing protection was consistent with the advice that was given, namely that hearing protection should be worn but it was left to the individual musician to use such protection as and when thought necessary. The manner in which the claimant used the hearing protection was consistent with that of other musicians and this was known and accepted by management.

The rehearsal at which the claimant alleges injury was sustained was the Saturday afternoon rehearsal. Prior to its commencement the defendant was on notice of a complaint on behalf of a viola player or players that the music was too loud. The defendant was alerted to the problem.

In my judgment the real issue in respect of contributory negligence is that the claimant took part in the entirety of the afternoon rehearsal when he was aware that the music was loud and that it was causing him discomfort. I accept the evidence of the defendant that a musician could leave a rehearsal if he or she was feeling unwell and that this would be dealt with sympathetically. I accept that it would be the ethos amongst the professional musicians employed to play in the orchestra to be precisely that, professionals. As such a musician would not easily leave a rehearsal and would attempt to deal with any difficulties that arose.

The claimant had experienced some difficulty with the noise levels prior to the afternoon. He was on notice of the problem, he knew the complaint had been made. In my opinion it would be reasonable for the claimant to commence the rehearsal. However, there would have come a time when he would have appreciated that the noise levels had not been reduced. It was at this point that it would have been reasonable for the claimant to leave the rehearsal so as not to cause further discomfort with his hearing. On the evidence I find that the noise was the directional sound which emanated from the Principal trumpet. By reason of that, I think it more likely than not that by the time the claimant should have appreciated that he should leave the rehearsal the acoustic shock damage had occurred. In those circumstances, although I find the claimant should have left the rehearsal earlier, I am unable to find that had he done so this would have prevented the injury which he sustained. Accordingly I do not find that the claimant’s failure to leave the rehearsal before it concluded contributed to his injury.

By reason of the above findings there be judgment for the claimant on the preliminary issue. Damages to be assessed.