Today’s question relates to paramedics accessing one property to rescue a person from a neighbouring property. My correspondent says:

I was curious about the legalities in terms of requiring access to private property in order to save a life. An example might be a very sick patient located somewhere in house or back yard. Paramedics are unable to simply take patient out through the front of the property due to house design or space available or something. After consultation with other paramedics, managers, police and fire rescue it is determined that the only way to get the patient out is to remove part of the fence with next door and take patient through next doors property. The neighbour says “No, you can’t come through here”. For paramedics it is ‘take the patient out through next door or sit there and watch the patient die’.

My (admittedly shaky) understanding is that in QLD, under the Ambulance Service Act 1991, authorised officers could require the next-door owners to comply to protect their patient from danger but what about NSW or VIC…

  • Would there be some sort of legal ability for emergency services to “force” access to/through private property in order to save a life?
  • Can the private property owners deny access if it means the death of a patient?
  • What are the boundaries of control a private property owner has over access to their property vs the value of a human life and taking steps needed to preserve said life?

The Ambulance Service Act 1991 (Qld) s 38 says:

(1) An authorised officer, in providing ambulance services, may take any reasonable measures—

(a) to protect persons from any danger or potential danger associated with an emergency situation; and

(b) to protect persons trapped in a vehicle, receptacle, vessel or otherwise endangered; and

(c) to protect themselves or other officers or persons from danger, potential danger or assault from other persons.

(2) Without limiting the measures that may be taken for a purpose specified in subsection (1) (a) or (b) , an authorised officer may, for that purpose—

(a) enter any premises, vehicle or vessel; and

(b) open any receptacle, using such force  as is reasonably necessary; and

(c) bring any apparatus or equipment onto premises; and

(d) remove from or otherwise deal with, any article or material in the area; and

(e) destroy (wholly or partially) or damage any premises, vehicle, vessel or receptacle; and

(f) cause the gas or electricity supply or motor or any other source of energy to any premises, vehicle, vessel or receptacle to be shut off or disconnected; and

(g) request any person to take all reasonable measures to assist the authorised officer; and

(h) administer such basic life support and advanced life support procedures as are consistent with the training and qualifications of the authorised officer.

That section would give QAS officers the power to enter via the neighbour’s property. That does not mean QAS would not have to pay for the damage – section 39 says:

The State is to indemnify every service officer against all actions, proceedings and claims in relation to—

(a)        acts done, or omitted to be done, by the officer under section 38; or

(b)       acts done, or omitted to be done, by the officer in good faith for the purposes of section 38.

A person could not look to the ambulance officer to pay for the fence, but could look to the State of Queensland. Whether the state would actually be liable to pay would depend on too many factors to consider here.

There is no equivalent to s 38 in either the Health Services Act 1997 (NSW) (dealing with NSW Ambulance) or the Ambulance Services Act 1986 (Vic) but that does not mean there are no powers. In the post The doctrine of necessity – Explained (January 31, 2017) I said:

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 in Dehn v Attorney General [1988] 2 NZLR 564, 580 (Tipping J):

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.

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

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)…

All of that would justify the sort of action suggested but one might consider that is unfair as the neighbour is left with damage to their property that is inflicted upon them in order to rescue someone else. As there is no ‘duty to rescue’ why should they be left with that cost? And what if the damage is more than just a fence – eg it’s a hole in the wall? The destruction of their building? The loss of their prize-winning garden? But, on the other hand, there is no doubt that a fire brigade can demolish a house that is not on fire in order to stop the spread of that fire –

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).

Conclusions

The questions I was asked were:

  • Would there be some sort of legal ability for emergency services to “force” access to/through private property in order to save a life?

Yes, the common law doctrine of necessity would justify that action but agencies should be cautious to consider the damage they are doing and do as little damage as possible. Convenience is not necessity (Murray v McMurchy [1949] 2 DLR 442). It would have to be the only way, not just the most convenient way to rescue the patient.

  • Can the private property owners deny access if it means the death of a patient?

Fundamentally I think they cannot though that would fly in the face of some principles including that there is no duty to rescue because here the neighbour is being saddled with the cost of their neighbour’s rescue. A cost which they are not legally bound to meet but if they cannot prove negligence by someone, they may not recover.

  • What are the boundaries of control a private property owner has over access to their property vs the value of a human life and taking steps needed to preserve said life?

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).