The following memorandum has been referred by the Secretary, Department of Home and Territories, to me for advice:

The Administrator of Norfolk Island has represented that one of the residents of the Territory has imported a motor car which has become a menace to life, owing to the fact that the horses of the Island are unaccustomed to motor cars and will not pass them on the roads.

As the Administrator desires to know whether the owner of the car would be liable in the event of actual injury to person or property, I shall be glad if you will kindly furnish me with an Opinion in the matter.

The laws in force in Norfolk Island in regard to crimes and offences are detailed in section 15, Part II of the Administration Law 1913.

Sections 53 and 54 of the Crimes Act 1900 of the State of New South Wales, adopted by the Administration Ordinance 1913, are as follows:

53. Whosoever, being at the time on horseback, or in charge of any carriage or other vehicle, by wanton or furious riding, or driving, or racing or other misconduct or by wilful neglect does or causes to be done to any person any bodily harm, shall be liable to imprisonment for two years.
54. Whosoever by any unlawful or negligent act or omission causes grievous bodily harm to any person shall be liable to imprisonment for two years.

Section 6 and 7 of the Public Roads and Public Notice Ordinance are as follows:

6. Whosoever rides or drives at any time on any public road or place so negligently or furiously as to endanger the safety of any person, or of the public, shall be liable to a penalty not exceeding three pounds.
7. Whosoever after sundown and before sunrise rides or drives furiously on any public road or place shall be liable to a penalty not exceeding two pounds.

I am not aware of any legislation in force in England in 1828 which is applicable in Norfolk Island under the Proclamation of 23rd December, 1913, and which affects this question; and my advice must be read as subject to such legislation, if any.

A highway (including in that term a public road) is a piece of land over which the public at large, including motorists, possesses a right of way.

Any act done without lawful justification whereby the exercise of the public right or passage is obstructed or rendered dangerous is a nuisance and, under certain circumstances, is a civil wrong actionable at the suit of the individual.

A motorist has the right to use any public road and, if, whilst lawfully proceeding along a road, an accident, which is purely so, arises, no action can be sustained for an injury arising therefrom. In order to maintain an action for damages, the plaintiff must give some affirmative evidence of negligence on the part of the defendant.

Before an action under section 53 of the New South Wales Crimes Act would lie, it would be necessary for wanton or furious driving or misconduct or wilful neglect to be proved, but under the Public Roads and Public Notices Ordinance driving so negligently or furiously as to endanger the safety of any person is an offence.

If a motorist in Norfolk Island by wilful neglect causes grievous bodily harm to any person, he would not only be liable to imprisonment for two years, but also to an action for damages.

If further legislation for the regulation of motor traffic in the Island is required, it is a matter to be dealt with by Ordinance.

[Vol. 21, p. 387]