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Viola Player Deafened by Brass Section Wins Right to Compensation

Employers are under a duty to protect their staff against a wide range of hazards, including noise. In an unusual case on this topic, an opera house viola player whose hearing was seriously damaged during a three-hour rehearsal of Wagner’s Ring Cycle won the right to substantial compensation.

The musician was sitting directly in front of the brass section during the rehearsal and suffered acoustic shock. He was stricken by tinnitus in one ear and his hearing was so badly affected that he was unable to return to his musical career. Lawyers on his behalf launched proceedings against the opera house alleging, amongst other things, breaches of the Control of Noise at Work Regulations 2005.

In resisting the claim, the opera house pointed out that the noise created by a professional orchestra is the product, not the by-product, of its activities. It was submitted that all reasonably practicable steps had been taken to protect the musician’s hearing and that a ruling in his favour would have a chilling effect on the opera house’s socially desirable activities.

In upholding the musician’s claim, however, the High Court noted that the noise of the brass section had been described as unbearably loud by another viola player. There had been no adequate risk assessment and no attempt had been made to monitor noise levels in the cramped orchestra pit. The opera house had received previous complaints about excessive noise levels but had not instructed the musician to wear the ear plugs with which he had been provided throughout the rehearsal.

The Court accepted that the musician should have left the orchestra pit when the noise levels began to cause him discomfort. However, by then, the damage caused by acoustic shock would already have been done. The amount of the musician’s compensation remained to be assessed, but was bound to be substantial given the impact of hearing loss on his musical career.

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