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Bc Disease News a Monthly Disease Update April 2018 Edition BC DISEASE NEWS A MONTHLY DISEASE UPDATE CONTENTS PAGE 2 Welcome Welcome PAGE 3 Welcome to the 225th edition of BC Disease News. Acoustic Shock: Goldscheider v the Royal Opera House Covent In this issue, we examine the judgment of Goldscheider v the Royal Opera House Garden Foundation [2018] Covent Garden Foundation [2018] EWHC 687 (QB), in which the claimant was EWHC 687 (QB) successful in bringing a claim for occupationally-induced acoustic shock. We also report on the High Court authority of Nash v Ministry of Defence [2018] PAGE 4 EWHC B4 (Costs), in which the Costs Master considered whether ‘good reason’ to depart from budgeted costs was provided by revisions to the hourly rate of Good Reason to Depart from a incurred costs. CMO Revisited: Nash v Ministry of Defence [2018] EWHC B4 Elsewhere, we highlight a new study which has associated smoking with an (Costs) increased risk of hearing loss at 4 kHz. PAGE 6 This week’s feature is the final segment of our emerging risks in agriculture series, in which we consider research into occupational conditions associated with ‘fracking’, and highlight advances in technology which may improve workplace Asbestos-Related Injury safety. Settlements Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen. PAGE 7 As always, warmest regards to all. HAVS: Breach of Duty Under s.2(1) of the Health and Safety at Work Act 1974 SUBJECTS Acoustic Shock and Professional Musicians – Good Reason to Depart from Smokers at Increased Risk of Budgeted Costs – Asbestosis and Mesothelioma Settlements – HAVS and Health Hearing Loss at 4 kHz Surveillance – Smoking and 4kHz Hearing Loss – Cancer Prevention – Plastic in Drinking Water – Common Chemicals, Thyroid Hormone Function and Brain New Study Shows 4 in 10 Development – Agricultural Risks: Technology and Fracking. Cancer Cases Could be Prevented PAGE 8 WHO to Review Risk of Plastic in Drinking Water Congenital Effects of Common Chemical Exposure PAGE 9 Feature: Emerging Risks in Agriculture – Part 4: Technology and Fracking PAGE | 2 the grounds that it had breached its reasonably have been governed by the risk Acoustic Shock: obligations to protect its employees under of established conditions, namely noise- Goldscheider v the common law, the Control of Noise at Work induced hearing loss, associated with long Regulations 2005 and other regulations. He term exposure, or the risk of acoustic Royal Opera House claimed to have been exposed to a trauma, associated with a peak exposure in maximum daily dose of 87 dB(A) and/or a excess of 135 dB(C)’. Covent Garden maximum peak sound pressure level of 140 dB(C). She went on to explain the position of the Foundation [2018] defendant, that: WHAT IS ACOUSTIC SHOCK? EWHC 687 (QB) ‘Exposure at 90 dB(A)Lepd on a daily basis The judge described acoustic shock as ‘an would only be expected to cause a small A musician has been successful at the High index exposure to any sound or cluster of amount of noise-induced hearing loss after Court in claiming damages for acoustic sounds of short duration but at a high a period of ten years. There was no shock, onset by occupational exposure to intensity reflects and is consistent with the foreseeable risk of injury posed by such a noise. Goldscheider v the Royal Opera evidence of the claimant as to the playing level of exposure in the context of a single House Covent Garden Foundation [2018] of the principal trumpet at or close to his day's rehearsal, particularly when hearing EWHC 687 (QB) is the first instance of right ear’. It is a ‘relatively new and thus far protection was worn’. success for a musician bringing a claim of primarily associated with reports 1 this type. However, Nicola Davies J, in emanating from call centres’. In edition 109 In any event, the claimant had been fitted handing down judgment, said it is ‘not of BC Disease News (here), we examined with ‘custom-moulded earplugs’, shortly uncommon’ for musicians to complain whether acoustic shock could be directly after joining the ROH, in 2002. Additional about noise levels and employers have caused by unexpected noise exposure. foam earplugs, providing enhanced attempted to take precautionary measures protection, were provided at the entrance to reduce claims associated with hearing As a result of the ‘newness’ of the condition, to the orchestra pit. loss. ‘Mr Jones, the defendant’s expert who retired from clinical practice some five and However, finding in favour of the claimant, The claimant, a professional orchestral a half years ago, was dismissive of the Davies J concluded, at paragraph 229: voila player, suffered aural damage during concept’. a rehearsal of Wagner’s Ring Cycle at the ‘I am satisfied that the noise levels at the Opera House, on 1 September 2012. During Irrespective of this, the judge did not afternoon rehearsal on 1 September 2012 a rehearsal session, he was positioned in ‘regard the absence of reported cases of were within the range identified as causing front of 18 to 20 brass instrument players. acoustic shock amongst professional acoustic shock. The index exposure was the Although the claimant had played in musicians as being determinative on this playing of the principal trumpet in the right orchestras throughout his professional life: issue of causation. Medical learning and ear of the claimant whether it was one knowledge is an evolving concept. sound or a cluster of sounds of short ‘... the sensation from so many brass duration. It was that exposure which instruments playing directly behind him, in The injury was consistent with the fact that resulted in the claimant sustaining acoustic a confined area, at the same time at ‘the sound or sounds would have been shock which led to the injury which he different frequencies and volumes, created unexpected because the claimant had sustained and the symptoms which have a wall of sound which was completely only his own musical part in front of him, the developed, from which he continues to different to anything he had previously trumpet player had his own part’. suffer’. experienced. COULD THE DEFENDANT BE EXPECTED TO The full text judgment can be accessed The lack of space and the proximity of the TAKE PREVENTATIVE ACTION FOR ACOUSTIC here. trumpets to the claimant’s ears meant that SHOCK? he was in the brass section’s ‘direct line of In next week’s feature article, we will look at fire’. It was excruciatingly loud and painful. Until Goldscheider, there had never been a the ratio of the judge in greater detail, on His right ear was particularly painful case of acoustic shock brought by a music breach and causation, and consider the because the principal trumpet was industry employee. As such, the ‘extensive potential impact of the decision, which we directed at that side of his head’. available guidance’ did not recognise the understand may be appealed. risk of acoustic shock. The injury suffered ‘prevented his return to music’. Subsequently, the claimant brought Davies J, at paragraph 170, explained the a claim against his employer, the ROH, on defendant’s position, namely that it ‘should PAGE | 3 agreed budget could only be departed downwards, absent of good reason. ‘Good Reason’ to Depart from a CMO Since April of 2017, the latest iteration of CPR 3.18 has provided judges at detailed assessment with the following powers: Revisited: Nash v Ministry of Defence [2018] EWHC B4 (Costs) In this article, we report on the case of Nash v Ministry of Defence [2018] EWHC B4 (Costs) on costs at detailed assessment. Previously, in edition 197 (here) of BC Disease News, we reported on the decision in RNB v London Borough of Newham [2017] EWHC B15 (Costs), which also ruled on ‘good reason’ to depart from a costs management order (CMO). The appeal decision of RNB had been expected, but the case since settled and has not been heard. Defendant counsel argued that, where Master Nagalingam had earlier reduced the hourly rates for incurred costs, there was ‘good reason to apply the same reduced rates to the In summary, this line of case law questions ‘budgeted’, i.e. future costs’. Thus, it was submitted that the newly assessed hourly rate could ‘... whether a costs judge, who reduces the be retrospectively applied to reduce the future costs, which were ‘merely recorded’ by the hourly rates for incurred costs, should then case managing judge unscrutinised. do the same to budgeted costs’?2 In recent case law, there has been uncertainty over The result of this, if the defendant was successful, was that the claimant would be restricted the extent to which costs judges may fetter to a recalculated total of budgeted costs, where the claimant had spent more than the the orders of judges at costs and case agreed budget, and receive the lower figure, at a recalculated rate, where they had spent management. Are incurred costs to be less than the agreed budget. treated in the same way as costs to be incurred? Counsel for the defendant also submitted that the parties agreed that the hourly rates, applied to the budgeted costs, were at the discretion of the costs judge at detailed In RNB, Deputy Master Campbell ruled that, assessment. Whereas, counsel for the claimant argued that its client, in agreeing aspects ‘reducing the hourly rates for incurred costs of future costs, did not seek to exclude hourly rates from that agreement. meant there was a “good reason” to reduce the budgeted costs too.’ Under the iteration of CPR 3.15, which was in force when the CMO was made, judges at case management were required to ‘record the extent to which the budgets are agreed However, in Bains v Royal Wolverhampton between the parties’.
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