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 [40]).

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 [1954] 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 [1954] 2 All ER 368; See also Rigby v Chief Constable [1985] 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 [1956] 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 [1988] 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.