Today a question from a Victorian paramedic who says:
I regularly hear on the radio now many of my junior colleagues requesting police to gain access to houses where there is a reasonable suspicion of a person inside who is unwell and unable to open the locked door. Often this is following a crew arriving after a call where neighbours or bystanders have seen a person on the floor through a window or similar but cannot gain access due to locks. Whenever I have been confronted with this situation in the past (32 years as a paramedic) I have called for police to attend and assist with ongoing security however I have gained access myself in the first instance… I am very mindful of gaining access promptly with minimal damage; unlike film and TV we don’t simply smash a window or kick in a door; there are many options.
My question in simple terms is, if a paramedic crew attend a location where there is a genuine and reasonable belief, either from information obtained during a call (i.e. a suicide/overdose with the call location confirmed) or on attendance a person is sighted unmoving on the floor, that a life is in danger what defence or exemption from trespass or criminal damage etc would that crew have if they were to force entry into the location either causing damage, or even if no damage is caused?
There is absolutely no doubt that a paramedic with a ‘genuine and reasonable belief … that a life is in danger’ is lawfully justified in forcing entry. The case law is extensive so I will touch on only some of them. Most of the discussion, below, comes from chapter 3 of my book, Emergency Law (4th ed, 2014, Federation Press).
The highest Australian authority is Kuru v New South Wales (2008) 236 CLR 1. This case involved police who had attended in response to a report of domestic violence. They were invited to come in and investigate but refused to leave when asked to do so and having satisfied themselves that there was no domestic violence offence occurring, or had occurred. In the High Court of Australia, Gleeson CJ, Gummow, Kirby and Hayne JJ said (at ).
The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire-fighters, police and ambulance officers will often invoke application of that principle. There being no evidence of danger to life or property, it was not suggested that this was such a case.
The principle that would justify such action is the principle of necessity. In Proudman v Allan  SASR 336, the South Australian Supreme Court summed up the application of the principle in cases where a person was taking action to save another’s property. It was said (at p 340):
In principle, there seems no reason why the common law should not recognise an exemption from liability to pay damages for trespass to goods of “volunteers” or strangers who, from no other motive than the same desire to save the property of others from damage or destruction as they would feel if it were their own property which was in jeopardy, take reasonable steps on an occasion of urgent necessity to remove that property out of the way of danger or safeguard it by some other means. It would seem that in principle the present respondent should not be absolutely liable for damage caused by his interference with the property of another when he acted in the reasonable belief that his interference was justified by the necessity of the situation and was intended to benefit the owner.
When the damage to property is necessary to save life, greater damage may be done that would be justified “to prevent mere damage to property” (Watt v Hertfordshire County Council  2 All ER 368; See also Rigby v Chief Constable  2 All ER 985, 994).
The safety of human lives belongs to a different scale of values from the safety of property. The two are beyond comparison and the necessity for saving life has at all times been considered a proper ground for inflicting such damage as may be necessary upon another’s property. (Southport Corporation v Esso Petroleum Co Ltd  AC 218, 228)
In New Zealand it was said:
A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order (1) to preserve human life, or (2) to prevent serious physical harm arising to the person of another, or (3) to render assistance to another after that other has suffered serious physical harm. (Dehn v Attorney General  2 NZLR 564, 580 (Tipping J)).
Necessity will justify almost any property damage in order to save life. The cutting up of the car, the entry onto property and the destruction of property can all be justified where that conduct is necessary to save another’s life.
The law still requires that any action taken under the doctrine must be reasonable, so that if the rescuer acts in a way that is not reasonable in the circumstances, they may be liable in negligence (Beckingham v Port Jackson and Manly Steamship Co (1957) SR(NSW) 403). This explains the decision in Vaughan v Webb (1902) 2 SR(NSW) 293 where a Superintendent of fire brigades was found to be liable for the damage done when a wall that had been made dangerous by fire was pulled down. Although the Superintendent was justified in pulling down the wall, it was found to be both possible and reasonable to have done so in a manner that did not damage the neighbour’s property. (It was a result of that case that fire brigade and other emergency service statutes now have provision to provide a defence for acts done in ‘good faith’). Necessity therefore justifies much that would otherwise be a tort due to interference with another’s property, but the doctrine requires that the conduct be reasonable in the circumstances.
In some jurisdictions the power to enter in an emergency has been put into statute. In New South Wales:
A police officer may enter premises if the police officer believes on reasonable grounds that:… (b) a person has suffered significant physical injury or there is imminent danger of significant physical injury to a person and it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person. (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 9).
In Queensland, an authorised ambulance officer (that is authorised by the Commissioner of the Queensland Ambulance Service) ‘may take any reasonable measures— (a) to protect persons from any danger or potential danger associated with an emergency situation …’ including ‘enter any premises…’ and ‘destroy (wholly or partially) or damage any premises…’ (Ambulance Service Act 1991 (Qld) ss 37 and 38).
When the Ambulance Service Amendment Act 2013 (Tas) comes into force on 1 July 2014 (see Ambulance Service Amendment Act 2013 (Tas)) ambulance officers will be given specific power to enter premises. The new s14A will say:
(1) An officer of the Ambulance Service may enter any land, premises or vehicle if the officer has reasonable grounds for believing that a person in or on the land, premises or vehicle requires urgent ambulance services.
(2) An officer of the Ambulance Service authorised to enter land, premises or a vehicle under subsection (1) –
(a) must, before entering the land, premises or vehicle, produce identification as such an officer; and
(b) may use such force as is reasonably necessary for the officer and his or her equipment to have safe entry to the land, premises or vehicle; and
(c) may take with him or her such other person as the officer considers necessary to effect the purpose for which entry is made.
(3) Subsection (2)(a) does not apply if the officer of the Ambulance Service is dressed in a uniform bearing the authorised insignia of the Ambulance Service.
Even without similar provisions, ambulance officers in Victoria (and other states and territories) may still rely on the common law explained above. If a paramedic has reasonable grounds to believe that there is an incapacitated person behind locked doors, they are justified in taking reasonable action to enter the premises. Calling the police, in the absence of specific statutory power being vested in the police, is simply calling for another person to act as a witness and to confirm that the decision, and actions, are reasonable. That may be a case of acting to protect one’s own interests rather than the interests of the person in need of assistance and does not represent the professional ideal. As paramedics move to professionalism, they need to be prepared to back their own judgment. If they have good grounds to believe someone needs their assistance, whether it’s from information received or they can actually see the person, the law does prioritise the saving of human life and would authorise action in those circumstances.
Michael, I love your line, “As paramedics move to professionalism, they need to be prepared to back their own judgement. ”
This is true in all areas of emergency response and management. Be prepared to back yourself with every decision that is made from cutting a tree up, extricating a casualty, parking a vehicle a particular way and so many other examples.
I’d like to know, however, just who is legally held responsible for all the damage paramedics and members of the public may cause if they break into someone’s property in a ‘perceived emergency’? In my case, there was no emergency, just a perceived one mistakenly held by a young Red Cross staff member in my area who rang me on an old mobile phone that I had asked NOT be phoned because it drops out, makes odd sounds and so on – I use it as a bedside alarm clock, actually. Because of some strange sounds he heard, the ambulance, someone from the army, two of my friends and paramedics all went into a panic and broke into my landlord’s property, which resulted in damage. To further complicate the matter, I have a lease with a specific clause, due to the landlord’s trouble with past tenants, that states that if ANY friend, visitor or other person known to me who comes on or into the property and damages the landlord’s property, I will be held legally responsible for such damage!. Can you advise on this, please? I believe it should be absolutely substantiated, perhaps by asking Police to try to raise the person thought to be in trouble, BEFORE simply breaking into a property and causing damage to it? I am most certainly not responsible for this damage and now perhaps will have to defend it at a court to ensure a fair (hopefully) finding is obtained! I have to ask: what if I was out shopping, had the mobile phone with me, even if just for contact data inside it, but because it made ‘strange noises’ when some emergency service rang it, or it precluded me from being able to answer it properly – does that mean they have the right to simply come to my landlord’s property and break in? If so, I will feel frightened from now on to even leave the house!
The starting point is that if a person’s property is damaged, it’s their responsibility and their problem. Things get broken – so whether its normal wear and tear or whether a vandal throws a brick through your window you are responsible for the cost of fixing it – unless you can shift that cost to someone else.
In your case the first person responsible for the damage is the landlord. But he or she can shift the loss. According to you, because of a clause in the lease they can shift it to you. No doubt they also have an insurance policy so they can move the loss to their insurer too.
I make no comment on the terms of the lease or whether this was any ‘friend, visitor’ etc but let me assume that you are right and the landlord can move the loss to you. In that case you are responsible for the damage done unless you, in turn, can shift it to someone else.
The obvious person you can shift it to is the people who actually broke in. You say there was a member of the Red Cross, paramedics, ‘someone from the army’ and two of your friends. No doubt one or all of them contributed to the damage. On what basis can you shift it to them? The relevant laws are the law of trespass and negligence. Trespass is a deliberate interference with the property of another. If they broke in then that, prima facie is a trespass. Normally anyone who breaks the property of another has to pay for it. But there is a defence of necessity here (which is discussed in detail in the original post). That is a defence – so you can make a claim – write a letter of demand or start court proceedings – and it is up to the people who you claim caused the damage to argue necessity.
Whilst negligence normally relates to inadvertent conduct it is also relevant here. If they were careless, eg if you are on some Red Cross call register and they recorded the wrong number or if they didn’t take care before breaking in then that may be negligent. Again they may want to argue necessity.
But let me turn to some issues suggested in this post. First, I doubt “the ambulance, someone from the army, two of my friends and paramedics all went into a panic”. Paramedics and soldiers (and it’s not at all clear what ‘someone from the army’ was doing there) are not prone to panic. You might think that if there were that many people there and they thought breaking in was warranted that there were some good grounds for that view.
Second, any court has to judge their conduct from the situation as they understood it; not as it actually was. You know there was no emergency and you know what damage was done, but before they event those people that broke in did not know if you were in distress in the house or what it would take to gain access. The question is not whether, given there was no emergency, the action was reasonable; the question is given what they knew at the time was their action reasonable.
The emergency services do not generally ring people and them come to their assistance if they don’t answer. Agencies like Red Cross do provide a call in service to check on people’s welfare (http://www.redcross.org.au/telecross.aspx). If you’re on that system, there is already a concern for your welfare and a system is in place to check on you. It stands to reason that ‘If the call is not answered, Red Cross will take action to make sure you are ok.” That’s the point of the service; they were, I infer, simply doing what they said they would do.
Let me assume therefore that these people were acting in good faith, that is they genuinely believed you may be in distress and were acting solely out of concern for your welfare. There may have been negligence if there’d been a failure to update the phone number or perhaps there was something else that could have been done but I doubt that anyone was ‘simply breaking into’ your property. No doubt it was a matter of great concern. Consider what the emergency services face when they receive a call to check on a person’s welfare – see http://www.abc.net.au/news/2016-09-13/body-of-toddler-found-at-house-in-miller-sydney/7839304; http://www.abc.net.au/news/2016-10-17/four-people-found-dead-in-home-in-davidson/7938744. I don’t think the decision to enter a home when there is some reason to fear for a person’s safety is every ‘simply breaking into a property’. As for negligence you would have to show that the action was unreasonable but if “the ambulance, someone from the army, two of my friends and paramedics” all thought that action was required, there is lots of evidence that it was a ‘reasonable’ decision.
As for ensuring that an emergency is ‘absolutely substantiated’ before taking action, imagine if you were lying on the floor, perhaps dying, and you could hear potential rescuers outside debating whether or not they had ‘absolutely substantiated’ the need to enter. Perhaps they could not and would leave, leaving you to die alone on the floor. Would that be a better option? And what do you suppose police could do to raise the person that was not already done? What’s more important, guaranteeing no damage to property or acting to save a life? Would you prefer people were left to die for fear of the consequences of breaking a door?
There are regular stories of people who die in their homes and are not discovered for days, weeks or years (see http://www.mirror.co.uk/news/world-news/mum-toddler-who-starved-death-8797797). So a person in your position can be angry that damage was done and try to shift that loss, and indeed if the actions of the “the ambulance, someone from the army, two of my friends and paramedics” and the “young Red Cross staff member” were negligent you may be able to recover the costs. Alternatively, you could be glad that you live in a society where people actually care and were concerned enough about your welfare to take action.
What about others who are not paramedics, will their action to save life be deemed as trespass? Example is a where a known domestic violence couple are fighting and the screams attract neighbors who break in to save the one under attack.
Whilst the statutes referred to in this post may have limited application the common law principles apply to everyone. Note that in Kuru the High Court said “any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property”. In Dehn v AG the reference was to ‘a person’ not ‘a paramedic’ or ‘a police officer’. “necessity for saving life has at all times been considered a proper ground for inflicting such damage as may be necessary upon another’s property” (Southport Corporation v Esso Petroleum Co Ltd  AC 218, 228)