This blog is generally about fire and rescue services and ambulance and paramedic services. Of course police issues come up as police respond to all manner of emergencies  but generally speaking I don’t go into matters of policing and law enforcement.  Having said that I’ll wander into that area to answer today’s question which is:

Out of curiosity if police remove and break roof tiles on a house while arresting an offender who is responsible for the repairs.

(I’m not given a specific jurisdiction so I’ll use NSW as an example. I am most familiar with NSW as I, along with former Justice Rod Howie, Paul Sattler and Marissa Hood, am one of the authors of Hayes and Eburn Criminal Law and Procedure in NSW (5th ed, 2016, Lexis/Nexis).  My original co-author was the late Robert Hayes from the University of Western Sydney.  The answer will be the same however in all states and territories).

I’m not sure why police are on the roof, but that doesn’t matter. The question can be rephrased in a more generic – if police damage a house while arresting an offender who is responsible for the repairs?   Asked in that way it doesn’t matter if the damage is to the roof or the door.

Police are allowed to use ‘reasonable force’ to enter premises to effect an arrest (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 10 ‘Power to enter to arrest or detain someone or execute warrant’, 230 ‘Use of force generally by police officers’ and 231 ‘Use of force in making an arrest’).  A member of the NSW Police Force is not personally liable for any injury or damage caused when, in good faith, he or she is exercising a police function (Police Act 1990 (NSW) s 23).  The Crown (ie the State of NSW) is however liable for any tort committed by a police officer (Law Reform (Vicarious Liability) Act 1983 (NSW) s 9B).  So the first part of the answer is that the crown would be liable if the action that caused the damage was a tort.

It is a tort (ie a wrong) to deliberately damage property but the police are given power to use reasonable force. It is a common law rule that if the parliament grants a power it is expected that it will be used.  It is not therefore a tort to do what the law allows so damage done in the reasonable exercise of the police power would not constitute a tort – see Vaughan v Webb (1902) 2 SR(NSW) 293. This case involved a decision by a fire brigade superintendent to pull down a wall.  Stephen ACJ said (at p. 299):

I need hardly say that, if the legislature authorises that to be done which must, of necessity cause injury, no liability can accrue to the person carrying out the will of the Legislature … So here the defendant would not be liable if the wall could not have been pulled down without injury to the plaintiff.

(It was that case that determined that acting in ‘good faith’ was not a defence to an action for negligence and led to the sections, now familiar in most emergency services legislation, that there is no liability for acts done ‘in good faith’).

By analogy a police officer doing what is authorised would not be exposed to liability, nor would the Crown, if they caused damage whilst doing something authorised by the legislature.  What the legislature authorises is the use of ‘reasonable’ force.

Whether the force is ‘reasonable’ depends on all the circumstances.  In the context of this question the issues would be:

  • What was the offender wanted for?
  • Did the police give him or her a chance to surrender? (As a general rule police have to give notice of their intention to enter premises and give anyone inside the chance to let them in before they break in, but there are exceptions where there is urgency or the warning is likely to lead to the offender’s escaping or destroying evidence; Law Enforcement (Powers And Responsibilities) Act 2002 (NSW) s 68; Lippl v Haines (1989) 18 NSWLR 620).
  • Where there are alternatives to breaking in? Was the door unlocked?

Where the damage is done to the home of a known, violent offender or the home of someone who was knowingly sheltering the offender, then I suspect the Crown would resist any claim that they were liable for the damage.

Where the damage is done to the property of a person in order to rescue them from the offender (authorised by the Law Enforcement (Powers And Responsibilities) Act 2002 (NSW) s 10) then I would also expect them to resist any claim in the same way that a fire brigade or ambulance service would, no doubt, deny liability for damage done when entering a house to rescue the person in the house.

If the damage is done to the home of an innocent neighbour, or if they police have entered the wrong house, they may be more willing to pay for the damage.

Regardless of the attitude of police where the actions were not reasonable they can be liable. For example in New South Wales v Ibbett [2006] HCA 57 the state was liable to pay damages and exemplary damages (ie damages there were more than the losses suffered by the plaintiff, intended to ‘make an example’ of the defendant and to reinforce the egregious nature of their conduct).  In that case plain clothes police chased an offender into his home.  He was only wanted for a traffic offence. On entering the premises police drew their weapons and pointed them at the alleged offender’s mother.  In all the circumstances the police conduct was not authorised by law.

Conclusion

If the action of police is ‘reasonable’ then they are not liable for damage done to property to make an arrest. If it was not ‘reasonable’ (taking into account all the circumstances) then the state will be liable for any damage done.