Today’s question is about forced entry to a private residence for the purpose of access by the Queensland Ambulance Service (QAS).  Queensland Fire and Emergency Services (QFES) are often:

… called to assist to make entry to assist with accessing someone with a medical episode needing assistance… usually we were met by an ambulance unit onsite who had already tried to make entry but needed our help to complete the task.

In the past 2-3 years it is more common that we are called for the same reasons however the ambulance unit has not arrived, is enroute or may not get there for another 20 minutes or more.

The Questions:

1. Who actually has Authority to make forced entry?
2. QFES by virtue of the request, or should we be waiting for the arrival of a QAS unit to confirm that we should make the forced entry?
3. Does QAS have their own ‘powers of entry’?

The relevant provisions will be found in both the Ambulance Service Act 1991 (Qld) and the Fire and Emergency Services Act 1990 (Qld).

Authorised ambulance officers

The Ambulance Service Act provides emergency powers for ambulance officers authorised by the Commissioner (s 37). Those powers (s 38) include the power to

… 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.

In particular, they may (emphasis added):

(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.

Authorised QFES officers

Similarly, the Fire and Emergency Services Act s 53, says that officers authorised under that Act:

… may take any reasonable measure—

(a) to protect persons, property or the environment from danger or potential danger caused by a fire or a hazardous materials emergency; or

(b) to protect persons trapped in any premises or otherwise endangered.

In particular, they may:

(a) enter any premises;

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

(c) bring any apparatus or equipment onto premises;

(d) destroy, damage, remove or otherwise deal with any vegetation or any other material or substance, flammable or not flammable;

(e) destroy (wholly or in part) or damage any premises or receptacle;

(f) shore up any building;

(g) close any road or access, whether public or private;

(h) shut off the supply of water from any main, pipe or other source to obtain a greater pressure or supply or take water from any source whether natural or artificial;

(i) cause to be shut off or disconnected the supply of gas, electricity or any other source of energy to any premises or area;

(j) require any person who, in the opinion of the authorised fire officer, is—

(i) the occupier of premises, being the site of or near to the site of the danger; or

(ii) in charge of anything that is the source of the danger or likely (in the opinion of the officer) to increase the danger;

to take any reasonable measure for the purpose of assisting the officer to deal with the danger or answer any question or provide any information for that purpose;

(k) require any person not to enter or remain within a specified area around the site of the danger;

(l) remove from any place a person who fails to comply with an order given pursuant to paragraph (k) and use such force as is reasonably necessary for that purpose;

(m) if unable to identify the person entitled to possession of property found at or near the site of the danger, take possession of the property and retain it for safe custody.

My correspondent says ‘We are talking about permanent crews in the metropolitan area hence we are Authorised Officers’.  In the post Gaps in Queensland fire legislation exposed in failed prosecution – Part 2 (October 28, 2022) I said:

It is not axiomatic that all paid firefighters are authorised fire officers. The Act does not say that. The Act says (s 52) that ‘The commissioner may authorise a fire officer or fire officers belonging to a class of fire officer …’.  If all ‘fire officers’ were authorised fire officers that section would not be necessary. It may be the case that the Commissioner has authorised all fire officers but that would need to be proved.

However, for the sake of this discussion we do not need to consider this further, and I will accept that we are only talking about duly authorised fire officers.

State of mind

Neither Act specifies the level of satisfaction the authorised ambulance or fire officer is required to have.  The legislation does not say the officer must ‘reasonably believe’ or ‘reasonably suspect’ that a person is endangered.  Their actions are justified if they are motivated by a desire to protect a person and the decision is ‘reasonable’ in the circumstances.   An authorised officer may concede they did not know if there was a person in need of assistance but given all the circumstances (including the fact that someone called triple zero) it may be reasonable to force entry to find out.

Two scenarios

There are two scenarios here:

(1) where QAS is in attendance with QFES and

(2) where QFES are there before QAS particularly where there is likely to be a significant delay before QAS get there.

In either case an important issue will be the amount of information or, if you like, the degree of confidence that any authorised ambulance or fire officer has that there really is an emergency inside the house.  The circumstances are quite different if you can see the patient incapacitated on the floor versus a response where a neighbour has rung concerned for someone’s welfare simply because they haven’t seen them for a few days. I accept that a ’concern for welfare’ check is more likely to be a job for the police, but I put it here as an example of one end of the spectrum of confidence.

Scenario 1

Let us consider scenario (1) – QAS and QFES are jointly in attendance.  The authorised ambulance officer may take reasonable measures to protect the person from danger posed by the emergency. They may ‘enter any premises’ and may request assistance from anyone, include the QFES officers, to assist. If the QAS officers are satisfied that entry to the premises is reasonably required, then their request is sufficient authority for QFES to act.  And the responsibility for the decision lies with QAS.

Scenario 2

In scenario 2 QFES are on scene but QAS are not.  Again, we can consider the degree of confidence.  If the person inside can be seen or heard calling for help, or perhaps they are incoherent but making noises that suggest they are in distress, then I suggest no-one would doubt that the person is ‘endangered’ and entry is permitted by s 53(1)(b).

The common law that would also justify entry.

… 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).

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 of New Zealand [1988] 2 NZLR 564, 580 (Tipping J)).

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] HCA 26, [40] (Gleeson CJ, Gummow, Kirby and Hayne JJ)).

The common law defence of necessity will justify almost any property damage in order to save life.

Where it is not obvious that a person is inside and requiring assistance for example the premises appear secure and there is no response and no-one at the scene who can give any information then a decision has to be made quickly.  The first consideration is that someone has rung for an ambulance, so someone thinks there’s an issue.  That begs the question of what information QFES has.  Have they been called to assist with the lift of a heavy, bed-bound patient, known to QAS and being transported to hospital for a routine event?  Is the call a ‘concern for welfare’?  Is the call to a ‘person in cardiac arrest, CPR in progress’ (which may explain why no-one is bothering to answer the knock on the door)?  Has QAS or QFES been despatched with ‘urgent’ priority (‘respond’) or not?

The risk/benefit calculation is, one hopes, reasonably obvious. If entry is not forced, and there is someone in need of urgent assistance, they may die.  If entry is forced and there is no person in need, then what’s the worst that happens – a damaged door or window?  My correspondent notes that ‘In many cases it can be as easy as making entry via the garage or through an unlocked window without any damage’.  If you can access the premises without doing damage, there could hardly be any reason not to.  The justification for that entry is that the emergency services have been called – by someone – and that must give rise to a suspicion that there is a person ‘otherwise endangered’ (s 53(1)(b)).   In the same way a fire officer would probably enter a building where there is a report of fire even if on arrival, they cannot see either flame or smoke.  The risk is such that it is incumbent upon them to check, given someone went to the effort to ring.

Liability

My correspondent then asks:

Who now becomes responsible for damage?

1. The fire service because we made the entry, or
2. The QAS because we were doing the job on their behalf?
3. Firefighters know basic first aid, usually for ourselves – without someone who knows what they are doing (medically) are we really helping by getting inside to someone having a medical episode?

(3) The value of first aid

Let me answer question 3 first.  If you are not ‘really helping by getting inside to someone having a medical episode’ then you have just defeated the purpose of the entire first aid industry.  If knowing ‘basic first aid’ is not really ‘helping’ then the first aid industry is a con. I’m not going to try and resolve the science, but I think we should accept that basic first aid helps.  Putting a pad on a bleeding wound, putting an unconscious person on their side, commencing CPR are life saving techniques that anyone can do. Simply being with the patient and letting them know that help is there, and more help is on its way is ‘really helping’.  I’m not a clinician but I’ve been involved in first aid for many years – and yes you are ‘really helping by getting inside to someone having a medical episode’.

(1) and (2) liability

In some sense it doesn’t really matter whether one asks whether it’s QAS or QFES responsible – in either case the liable party will be the State of Queensland (see State of Queensland STILL liable for paramedic negligence (October 25, 2017) for a discussion of the legal status of QAS – and the same reasoning would apply to QFES).

As for who is liable for the damage, possibly no-one. As we have seen both QAS and QFES have statutory powers to force entry, and the parliament intended those powers to be used. 

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… (Vaughan v Webb (1902) SR(NSW) 293).

Breaking down a door as permitted by the legislation does not make anyone responsible for the damage.

But, said Vaughan v Webb, there can be liability if the powers are exercised without due care.  It was that decision that led to legislation in most states and territories (but not, it appears Queensland) providing that ‘good faith’ is a sufficient defence for the emergency services.  Based on Vaughan v Webb, which is still the law in Queensland, there could be liability for damaging the door if a quick, and reasonable check, would have revealed that the back door was unlocked, or entry could have reasonably been made without damage.  But assuming the decision for force entry, either by an authorised fire or ambulance officer, was reasonable in all the circumstances (including the potential urgency and the information vacuum) there is prima facie no liability.

If the decision was not reasonable, but made in good faith, then QAS is liable for the decisions of its officers (Ambulance Service Act 1991 (Qld) s 39).

For the fire service, the Fire and Emergency Services Act 1990 (Qld) s 153B(1) says:

No liability attaches to any person for an act done, or omission made, honestly and without negligence under chapter 3 .

Chapter 3 is about the Queensland Fire and Emergency Services.  This section is next to, if not actually, useless. Compare the Queensland section to the Fire and Rescue NSW Act 1989 (NSW) s 78. The NSW Act says:

A matter or thing done, or omitted to be done, by the Minister, the Commissioner, any member of staff of Fire and Rescue NSW, any member of a fire brigade, any member of a community fire unit or any person acting under the authority of the Commissioner does not, if the matter or thing was done, or omitted to be done, in good faith for the purposes of executing this or any other Act, subject such a person personally, or the Crown, to any action, liability, claim or demand.

If it was done in good faith, even if it was done negligently (as was the case in Vaughan v Webb) then the Crown and everyone else is protected from liability.

The Queensland Act says that the protection only applies for acts done honestly and without negligence.  None of us are liable for acts done ‘honestly and without negligence’. In a claim for compensation a plaintiff has to establish why the defendant is liable and merely pointing to a causal link between the defendant’s actions and the plaintiff’s injuries is not enough.  The plaintiff has to show that the damage was deliberate or negligent, that is in any claim, even without s 153B, a claimant would have to prove either mala fides (ie dishonesty) or negligence.  To say there is no liability in the absence of dishonesty or negligence is to restate the common law.  Section 153B(3) then says the burden of proving a lack of honesty or negligence falls on the person claiming damages.  Again, that is no different to the common law.  This section really says nothing useful other than to codify what a plaintiff would have to prove in any event (see Michael Eburn, Emergency Law (4^th ed, 2013, Federation Press) pp. 285-286).

The only value s 153B may have is that it may extend to protection from criminal liability but again, the common law, the Fire and Emergency Services Act 1991 (Qld) s 53 and the Criminal Code 1899 (Qld) s 25 (‘Extraordinary emergencies’) would provide relevant defences. 

What follows is that if the decision by the fire crew is negligent – ie not reasonable in all the circumstances, then QFES (or more accurately, the State of Queensland) may be liable to repair the damage, noting again that if the reasonable response was to damage the premises to gain access, that is authorised by the legislation.

The State of Queensland will be vicariously liable for any negligence by QFES and QAS staff.

Some specific questions

My correspondent raised some specific questions which I’ll now address.  They said:

Section 53(1)(a) – This wouldn’t allow us to make forced entry

s 53(1)(a) refers to ‘danger or potential danger caused by a fire or a hazardous materials emergency’ so I agree that is not relevant in the context.

Section 53(1(b) – A bit hard to decipher from where I stand….,

They can’t be trapped if they are in their own home can they?

I don’t see why a person isn’t trapped in their own home if they cannot get out or if they cannot get out of their room.  But in any event s 53(1)(b) talks about a person trapped or ‘otherwise endangered’ and a person suffering a medical emergency is endangered if they don’t get assistance.

A medical episode on the toilet might be a situation but they would have to ring the 000 themselves?

Otherwise endangered, again, if they ring 000 to ask assistance?

I don’t see why patient has to be the person to ring 000.

It can hardly be either of those if the QFES is used to respond instead of the QAS if the phone call didn’t come directly from the occupant via QAS communications centre? 

I don’t see why those conditions – the phone call came directly from the occupant via QAS communications centre – must be true.  There is no reason why the call has to come from the occupant. My understanding is that QFES are not dispatched ‘instead’ of QAS, they are dispatched with QAS (even if they get there first).  It then depends on the information in the tasking – what was reported to QAS?  What has QFES been tasked to do? What is the priority assigned by both QAS and QFES? What further information can be collected on scene? The question will be ‘what information did you have?’ but that information will always be incomplete. 

Just because a neighbour or family member hasn’t heard from them or seen them doesn’t allow damage to occur just for the purpose of making entry, shouldn’t we wait for QAS/QPS in that circumstance? 

The law allows for damage to be done if that is a reasonable response given the information available. The neighbours may have a deal that they raise their blinds or make some other signal each morning and the signal has not been made. Perhaps the call has come from the Red Cross when the person failed to answer their pre-arranged welfare check phone call (see https://www.redcross.org.au/services/telecross/)  That is a different to a neighbour who hasn’t been seen, but where their car is not there and they have arranged to have their mail held at the post office.  Context is everything.

Conclusion

The three key questions were:

1. Who actually has Authority to make forced entry?
2. QFES by virtue of the request, or should we be waiting for the arrival of a QAS unit to confirm that we should make the forced entry?
3. Does QAS have their own ‘powers of entry’?

The answers are:

1. Authorised officers from both QAS and QFES have the authority to force entry.
2. Whether QFES should wait for QAS depends on all the circumstances – the information given when dispatched, what can be observed at the scene, the assigned task and if necessary getting back to COMCEN to get them to confirm with QAS what they want QFES to do. 
3. Yes QAS have their own ‘powers of entry’.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.