Today’s correspondent attended a
… recent paramedic Continuing Education Program course [where] there was a discussion about bystander first aiders and AEDs; and a story was told about an unfortunate situation where there was a cardiac arrest almost directly outside a business, with an AED visible through a glass door, but being a weekend the place was locked so the AED was inaccessible by the bystanders performing CPR. Hypothetically, in that situation, would said bystanders be covered by the principle of necessity to break into said business and “steal” their AED to use prior to the arrival of the paramedics? If a bystander was to follow that course of action, what would be the reasonable steps to take before and after doing so?
I think in essence that the bystander would be covered by the principle of necessity – in much the same way as breaking the door to access the patient. To quote from an earlier post – The doctrine of necessity – Explained (January 31, 2017):
The starting point for most cases appears to be Stephen’s Digest of the Criminal Law (1st ed, 1887). He said:
An act which would otherwise be a crime may in some cases be excused if the person accused can show that it was done only in order to avoid consequences which could not otherwise be avoided, and which, if they had followed, would have inflicted upon him or upon others whom he was bound to protect inevitable and irreparable evil, that no more was done than was reasonably necessary for that purpose, and that the evil inflicted by it was not disprortionate to the evil avoided. The extent of this principle is unascertained.
In R v Davidson  VR 667 Menhennit J said ‘The principle of necessity as stated by Stephen contains within it the two elements of necessity and proportion’. The accused has to believe, upon reasonable grounds, that it is necessary to take the action and that the harm done is not disproportionate to the harm to be avoided.
You have to believe it is necessary to enter the premises to get the AED and the harm done (breaking the window) is not disproportionate to the evil avoided – of course the evil avoided is not ‘death’ as you cannot know when you break the window whether the patient will die, but that is what you are trying to avoid. If ‘… In principle, there seems no reason why the common law should not recognise an exemption from liability to pay damages for trespass to goods’ where a person takes ‘ reasonable steps on an occasion of urgent necessity to remove that property out of the way of danger or safeguard it’, but by doing so damages it (Proudman v Allan  SASR 336) then there can be no liability where the damage to goods is done to save a life. As I also said in that earlier post:
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).
It raises the ethical question of whether one can steal to save a life. If you needed life saving drugs can you steal them for the pharmacist? Is it an offence to steal a ‘loaf of bread’ if your ‘sister’s child is close to death’ (Les Miserables (the musical, not the book)). Generally, the law, as I understand it, say that it is. We are under no duty to rescue a stranger, so we do not have to allow our goods to be stolen. Whether there is any change to that we do not need to consider, as the person taking the AED is not planning to steal it that is deprive the true owner of it. They know it belongs to the company and never intend to take ownership of the AED, just use it for the purpose intended.
As for criminal offences, often referred to as ‘break and enter’ that is usually a shortcut. If we take NSW as an example there are offences of (Crimes Act 1900 (NSW)):
- Breaking out of dwelling-house after committing, or entering with intent to commit, indictable offence (s 109);
- Breaking, entering and assaulting with intent to murder etc (s 110);
- Entering dwelling-house (s 111);
- Breaking etc into any house etc and committing serious indictable offence (s 112); and
- Breaking etc into any house etc with intent to commit serious indictable offence (s 113).
The business in the hypothetical is not a dwelling house so ss 112 and 113 are relevant as they refer to a ‘dwelling house or other building’ but even so one has to break in (or out) as part of committing a serious indictable offence. The ‘breaking and entering’ is not the offence it has to be coupled with your motive or intention – you intend to or do commit a serious indictable offence such as assault, larceny (stealing), robbery (stealing from a person), sexual assault, murder etc. Breaking in to get an AED to save someone’s live is not breaking in AND committing a serious indictable offence nor is it breaking in with intent to commit serious indictable offence.
What should the bystander do before and after breaking in an grabbing the AED? First consider is it a proportionate response? How far away is an ambulance? The time it takes to work out how to break in (which I suspect is harder than it sounds) takes a person away from the scene who could be doing CPR and/or calling triple zero. If you are the only person there you would be better off doing either or both of those things before attempting to break a window that no doubt has been designed NOT to be broken (at least no broken easily). And remember the rules of first aid – the first issue is Danger to yourself – and trying to break into a secured people is not without its risk of injury.
If the person does manage to break in, the need to ring the police and stay and give them a statement as to how and why they did it. They might expect a bill. Necessity is a defence which means if the property owner (or their insurer) chases the good Samaritan for the cost they may be able to defeat the claim, but it doesn’t mean the property owner (or their insurer) won’t try it on. The good Samaritan would no doubt raise the principle of necessity and the relevant good Samaritan provisions in that state or territory, but even if they come out with a win it doesn’t mean they won’t have to argue the point with the insurers and maybe even argue it in court.
In principle I’m sure the doctrine of necessity would justify breaking into a building to grab an AED where a person is having a cardiac arrest outside the building. But the reality is that this is probably much harder to do than it sounds, and the time and effort taken may be better spent on being another person to do CPR.
The situation would be more real if, for example (and for whatever reason) the AED was in a locked cupboard or cabinet, for example if some business thought they had to restrict access to the AED only to their first aid officers. In that case, go for it.