RISK ASSESSMENTS AND THE VIOLA PLAYER: BOWING TO THE INEVITABLE OR JUST HIGHLY STRUNG?

The case of Goldscheider v The Royal Opera House Covent Garden Foundation [2018] EWHC 687 (QB) received a lot of attention because of the unusual facts. However the case is, in fact, a classic illustration of the central importance of the risk assessment in modern litigation.

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THE RISK ASSESSMENT: FORTHCOMING TALK

Here we concentrate upon one aspect of the case – the risk assessment. These matters will be considered in more detail in my talk on the 5th June 2018 at Zenith Chambers: Risk Assessments & Personal Injury Claims: A “Blueprint for action”.  Details are available here.

This issue is important to claimant and defendant lawyers and insurers alike.

THE CASE

The claimant was a viola player with the Royal Opera House. His case was that he suffered injury to his hearing during the course of a performance.

THE CLAIMANT’S PLEADED CASE

The claimant’s case included an allegation of a failure to carry out an adequate risk assessment.  Regulation 5 of the Control of Noise Regulations imposes a duty to carry out a risk assessment.

THE DUTY TO CARRY OUT A SUITABLE AND SUFFICIENT RISK ASSESSMENT

The defendant had carried out risk assessments. The question was whether those risk assessments were suitable and sufficient.

    1. 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 worst-case 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 ASSESSMENTS IN THIS CASE

The defendant argued that it had carried out risk assessments and that these assessments were adequate and were acted upon. This argument was rejected by the judge.

    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.
    2. 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.
    3. 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 warm-ups 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.
    4. 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.
    5. 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 Regulation 5(1) in that the risk assessment failed to fully identify the measures which needed to be taken to meet requirements of the 2005 Regulations.
    6. 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.
    7. 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.

 

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