O'Kane v Campbell

• Jurisdiction: Ireland
• Judge: Mr. Justice Kevin Lynch
• Judgment Date: 01 January 1985
• Neutral Citation: 1985 WJSC-HC 1456
• Court: High Court
• Date: 01 January 1985

1985 WJSC-HC 1456

The High Court

O'KANE v. CAMPBELL

(Circuit Appeal)

Between

Mairead o'Kane

Plaintiff/Respondent

and

Michael Campbell

Defendant/Appellant

Citations:

MULLIN V HYNES UNREP SUPREME 13.11.72.

Synopsis:

NUISANCE

Noise

Shop - Customers - Night-time trading - Interference with plaintiff's sleep - Plaintiff's dwelling near defendant's shop - Whether any material delay in making plaintiff's complaint - Defendant restrained from trading between midnight and 6 a.m. - (Ct. App. - Lynch J. - 4/10/84).

O'Kane v. Campbell

TRADE

Nuisance

Noise - Shop - Customers - Night-time trading - Interference with plaintiff's sleep - Plaintiff's dwelling near defendant's shop - Whether any material delay in making plaintiff's complaint - Defendant restrained from trading between midnight and 6 a.m. - (Ct. App. - Lynch J. - 4/10/84).

O'Kane v. Campbell

1 Judgment of Mr. Justice Kevin Lynch delivered on the 4th day of October, 1984 .

2 The plaintiff resides in Glengarriff House at No. 4, Glengarriff: Parade. This street is in the vicinity of Mountjoy Prison and runs northwards from North Circular Road to the Royal Canal and the railway-line. The plaintiff's house is the second premises from the corner, the first being a shop which does not trade at night time and the plaintiff's house is on the left-hand side as one enters Glengarriff Parade from North Circular Road.

3 The defendant's premises are on the corner of Glengarriff Parade and North Circular Road but on the opposite side of Glengarriff Parade from the plaintiff's house, that is to say on the right-hand side as one enters Glengarriff Parade from North Circular Road. The ground floor of the defendant's premises is used by him for business purposes. In former years it was used as a hairdressers business then closing about 7 p.m. Later on it was used as a grocer's business trading up to 7 p.m. at first and later on again trading until 11 p.m. More recently, and apparently about 1977 or 1978, the premises commenced to trade on a 24 hour basis. This occurred first when it came into the ownership of a Mr. Davey who bought the said premises in 1977. The defendant purchased the premises from Mr. Davey at a time when it was already being used as a 24 hour shop trading 7 day a week and the defendant at the time of his purchases was unaware of any objections from the neighbours it indeed any had yet been made.

4 The plaintiff claims that the use by the defendant of his premises for all night trading constitutes a nuisance to her in the enjoyment of her premises. The defendant denies the alleged nuisance and further says that he is using his own premises for a perfectly lawful purpose which is of benefit to the area and that he is no to blame for the conduct of members of the public over whom he has no control except when they are actually inside his shop premises. The plaintiff says, however, that it is the defendant's night trading which attracts and causes the matters of which she complains and if in fact these matters do cause a nuisance to her premises this is a valid submission in law as to the defendant's responsibility for at least the ordinary natural conduct of people whom he attracts to the neighbourhood.

5 The evidence of a Mr. Beacham, a private detective, was not really contradicted by the defendant who accepted that it was substantially true. Perhaps there was some extra custom on the two nights that Mr. Beacham observed because it was the week-end of the All Ireland G.A.A. Final but by and large his evidence gives an accurate picture of the usual week-end state of affairs. He was in the plaintiff's house from 2 a.m. to 5 a.m. on both the Saturday and the Sunday mornings at that week-end. On each of these mornings he observed over 30 attendances at the defendant's shop which were clearly audible through the closed windows of the front bedroom of the plaintiff's house.

6 These are the normal and inevitable noises of ordinary law abiding people going to and from the shop from and to cars, motor-bikes, vans, trucks...