I was wondering if you could give your opinion on who can and who cannot break into a car in a case where someone left a child locked in their vehicle? Police, Fire & Rescue, Ambos, First Aid Volunteers, Security and bystanders are all in different situations where they can come across this and I wonder if most would be too scared to act due to the fear of prosecution.

To the list of potential rescuers we should add road service patrol officers (eg NRMA, RACQ, RACV etc).

Fire brigade legislation does give the various Australian fire brigades extensive powers to take action in an emergency that would include forcing entry to a car to release a trapped child (Emergencies Act 2004 (ACT) s 34 General Powers of Chief Officers so these powers are vested in the Chief Officer of ACT Ambulance, ACT SES, ACT Rural Fire Service and ACT Fire and Rescue; Fire and Emergency Act (NT) s 20; Fire and Emergency Services Act 1990 (Qld) s 53; Fire Service Act 1979 (Tas) s 29; Fire Brigades Act 1942 (WA) s 34).   In some jurisdictions these powers are limited so that they only apply in response to a fire or hazardous materials incident (Fire Brigades Act 1989 (NSW) ss 11-22D; Fire and Emergency Services Act 2005 (SA) s 42 with respect to South Australian Metropolitan Fire Service and s 96 with respect to the Country Fire Service; Metropolitan Fire Brigades Act 1958 (Vic) s 32B; Country Fire Authority Act 1958 (Vic) s 30).

State Emergency services may also be given specific powers to enter property to rescue people (Emergencies Act 2004 (ACT) s 34; State Emergency Service Act 1989 (NSW) s 22A; Emergency Management Act 2013 (NT) ss 46 and 47; Fire and Emergency Services Act 1990 (Qld) s 149 with respect to ‘authorised rescue officers’; Fire and Emergency Services Act 2005 (SA) s 118; Fire and Emergency Services Act 1998 (WA) s 18B).

Ambulance officers in some states also enjoy explicit powers that would extend to breaking open a car to release a trapped child (Emergencies Act 2004 (ACT) s 34; Ambulance Service Act 1991 (Qld) s 38 with respect to ‘authorised officers’; Health Care Act 2008 (SA) s 61; Ambulance Service Act 1982 (Tas) s 14A).

It is beyond the scope of this blog to go through all the Australian police legislation so I’ll limit myself now to NSW.  A NSW Police officer may ‘enter premises’ (which includes a vehicle) if ‘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).  No doubt similar provisions exist in most if not all other jurisdictions.

Member of the emergency services that do not have relevant, specific powers, first aid volunteers, security staff, bystanders, and road side patrol officers are all in the same positon, they have no specific legal authority to force open a car – but none is needed.  And none is needed because there is a general authority established by the common (or judge made) law.    (The discussion that follows is taken from my own book Emergency Law (4th ed, Federation Press, 2013, Chapter 3)).

An intentional interference with the goods of another (which would include a car) would be a trespass and would entitle them to compensation for any damage caused. To put that in context, smashing the window of a car in order to get out a heat-stressed child would, without legal excuse, constitute a trespass and would warrant the pay­ment of compensation. It would, however, be outrageous to consider that the person should be liable to pay the cost of the damage to the window. The legal defence lies in the common law notion of “necessity”.

For the defence of necessity to apply it must be shown that there was a real and imminent danger and that the conduct of the defendant was such that “any reasonable man would, in the circumstances of the case, have concluded that there was no alternative to the act of trespass if the property [or life] endangered was to be preserved” (Cresswell v Sirl [1948] 1 KB 241, 247..  The doctrine can be traced back to 1538 when a court said:

Yet we will well agree that in some cases a man may justify the commission of a tort, that is in cases where it sounds for the public good … a man may justify pulling down a house on fire for the safety of the neighbouring houses … (Maleverer v Spinke (1538) 73 ER 79, 81).

In 2008 the High Court of Australia said:

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 (Kuru v State of New South Wales (2008) 236 CLR 1, [2008] HCA 26, [40] (Gleeson CJ, Gummow, Kirby And Hayne JJ).

The doctrine of necessity can apply where the defendant reasonably believes that some action is necessary even if it turns out later that it was not. In Cope v Sharpe (No 2) [1912] 1 KB 496 the defendant was not liable for setting fire breaks that were not, as it turned out, necessary to control a fire that was extinguished by others before it got to the breaks.

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”.

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 doctrine is not limited to professional rescuers. A person visiting their neighbour who sees that they are lying injured on the floor is as justified in breaking the door in order to render assistance as is the local ambulance or fire service.

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 principle is subject to the rule that in deciding what was or was not reasonable, the courts, given the agony of the moment, are willing to excuse conduct that would be considered negligent in less urgent circumstances, particularly when life (rather than mere property) is involved.  The “agony of the moment” rule says that courts must take into account that where a person has found themselves in a situation not of their making and where immediate action is required, then the person’s conduct is not to be judged as negligent because, in retrospect, it appears that another course of action would have been better.

[A] man is not to be charged with negligence if he, not being the creator of the crisis or emergency which has arisen, finds himself faced with a situation which requires immediate action of some sort and if, in the so called “agony of the moment”, he makes an error of judgment and takes a step which wiser counsels and more careful thought would have suggested was unwise (Leishman v Thomas (1958) 75 WN(NSW) 173, 175).

A rescuer, “acting under the pressure of emergency, is to be judged leniently as to the reasonableness of his conduct” (Wallis v Town of Albany (1989) Aust Torts Reports ¶80-283, [69,011] (Pidgeon J); Wagner v International Railway Co 133 NE 437 (1921), 437-38 (Cardozo J)).

The Children and Young Persons (Care and Protection) Act 1998 (NSW) s 231 says:

A person who leaves any child or young person in the person’s care in a motor vehicle without proper supervision for such period or in such circumstances that:

(a) the child or young person becomes or is likely to become emotionally distressed, or

(b) the child’s or young person’s health becomes or is likely to become permanently or temporarily impaired,

is guilty of an offence.

The maximum penalty is a fine of 200 penalty units ($2200).

(For a comparison of the laws in each jurisdiction see https://www.slatergordon.com.au/blog/unattended-children-getting-facts-straight)

The test in the Children and Young Persons (Care and Protection) Act is probably a good guide.  Any person who sees a child locked in a car can take action if they reasonably believe that the child is ‘or is likely to become emotionally distressed’ or the child’s health is ‘or is likely to become permanently or temporarily impaired’.  Provided there are reasons to hold that belief that will be sufficient even if it turns out that the child was not distressed, there health was not impaired and mum or dad were about to walk around the corner.  It may not be reasonable on cold, wet and foggy morning to smash the window of the car when the parents are standing in sight of the car perhaps buying fruit at the roadside fruit market.  It may well be reasonable in an open air car park where the owner of the car is not obviously nearby and you’ve first checked that the doors are in fact locked.

Other defences

In terms of personal liability members of the emergency services that do not have any specific power, eg paramedics with the Ambulance Service of NSW will not be personally liable for their decision.  If they have responded, and given the ambulance service’s general duty to render first aid to, and transport sick and injured persons (Health Services Act 1987 (NSW) ss 67B and 3 (definition of ambulance services)) will be able to argue that their actions were in the course of their employment as paramedics and a good faith performance of their duties for ‘the protection of persons from injury or death, whether or not those persons are or were sick or injured’. (Health Services Act 1997 (NSW) s 67I).

A person who has no particular authority other than concern for the child’s welfare would be able to point to the Good Samaritan laws.  A ‘”good samaritan” is a person who, in good faith and without expectation of payment or other reward, comes to the assistance of a person who is apparently injured or at risk of being injured.’   ‘A good samaritan does not incur any personal civil liability in respect of any act or omission… in an emergency when assisting a person who is apparently injured or at risk of being injured. (Civil Liability Act 2002 (NSW) ss 56 and 57).  A child who is in a car ‘in such circumstances that … the child’s or young person’s health becomes or is likely to become permanently or temporarily impaired’ would also constitute a relevant emergency for the good Samaritan provisions.

Defences do not guarantee that someone won’t ‘try it on’

The law says that this action is Ok but the law is not self-executing.  What I mean by that is that just because the law justifies the action it does not mean everyone will see that it was ‘reasonable’ in the circumstances.  The owner of the car may well want to demand compensation.  If push comes to shove they may even take legal action.  The law means the rescuer can go before the relevant tribunal (probably a small claims court) and say ‘I’m not liable’ but it does not guarantee that the owner won’t ‘try it on’.   A person is less likely to try it on when the rescuer is the police, fire service, ambulance service or road service.    (Having said that, I recall when I was a legal officer for NSW Health and a person asked us to pay for the door that the ambulance service had forced when they came to save the person’s life.  We gave that a very short answer and heard nothing more).

A person concerned about that may prefer to ring 000 for emergency assistance, take a photo before affecting the rescue, or at least ask other bystanders to confirm that they think it’s a reasonable response and hopefully get their names and address to act as a witness to confirm that the circumstances did warrant that action.  Those steps are not necessary, you don’t need to do them and presumably would not take the time in clearly urgent circumstances.  If it is 40 degrees in the shade and the child is obviously distressed or worse, unresponsive, just smash the window.  The response of the police and the press will pretty much ensure that the car owner isn’t going to try on a claim for compensation.

A legal anomaly

Under the Australian Road Rules the driver of a car must ensure that the car is secure (Road Rules 2014 (NSW) r 213).   Rule 213(4) says:

If the driver will be over 3 metres from the closest part of the vehicle, and …

(b) there is only a  child  or children under 16 years old left in the vehicle,

the driver must remove the ignition key before leaving the vehicle.

Maximum penalty: 20 penalty units ($220).

So a driver might decide they’ve got to run into the shop to buy the milk but they’ll leave the child or children in the car, but because of rule 213(4) it would be an offence to leave the key in the car so it would be impossible to leave the engine and air conditioning running.  The anomaly is that rule 213(4) certainly anticipates that a child will be left in the car.  It could be amended to say that if the driver will be over 3 metres from the closest part of the vehicle, they should ensure that there is no child under the age of 16 in the car; but that’s not what it says.