Today I’m asked:
To what extent can a forceful entry be conducted to save a life that either doesn’t want to leave or doesn’t want to live. This would also include forcefully handling the victim.
From a volunteer’s perspective a police officer would not be available to negotiate as time will not be permitting. An example as attached:
I hoping that when a life is jeopardy. Logical steps would be taken. Although law isn’t always logical.
The issue in the video has nothing to do with the law – a matter I shall return to.
If what we are concerned about is liabilty for property damage, that is whether it’s ok to damage the car or home to get access to a person in need, the answer is clear- see
- Getting children out of locked cars (February 23, 2016)
- Clearing up storm damage and the role of the property owner in NSW (August 18, 2014)
- Paramedics forcing entry to premises (March 25, 2014)
As for ‘forcefully handling the victim’, it is the law that any touching of another person, without either their consent or some other lawful justification or excuse is a battery, which is both a crime and a tort (that is a civil wrong for which the person can recover damages without the need to prove actual injury). So can you use force to pull someone from danger? Yes, because there is a lawful justification or excuse.
In Collins v Wilcock  3 All ER 374, Lord Justice Goff (the title ‘Lord Justice’ is a dead giveaway that this is an English case) said:
The fundamental principle, plain and incontestable, is that every person’s body is inviolate. It has long been established that any touching of another person, however slight, may amount to a battery… The effect is that everybody is protected not only against physical injury but against any form of physical molestation….But so widely drawn a principle must inevitably be subject to exceptions… to allow for the exigencies of everyday life [there is] … a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life.
What is acceptable in the ordinary conduct of daily life will depend on the circumstances and the attitude of the court (should it ever get that far). One example given is touching a person in order to get their attention. Another example may be grabbing someone to stop them walking into the path of a bus or off a cliff, or to pull them from a burning building or car.
There is also an exception for actions done out of necessity. That has been talked about often enough in the context of this blog with respect to providing health care where a person cannot consent. Again it was Lord Goff who said (in In Re F  2 AC 1):
… to fall within the principle, not only (1) must there be a necessity to act when it is not practicable to communicate with the assisted person, but also (2) the action taken must be such as a reasonable person would in all the circumstances take, acting in the best interests of the assisted person.
On this statement of principle, I wish to observe that officious intervention cannot be justified by the principle of necessity. So intervention cannot be justified when another more appropriate person is available and willing to act; nor can it be justified when it is contrary to the known wishes of the assisted person, to the extent that he is capable of rationally forming such a wish.
Necessity is a broad principle however and can form a defence to any tort or crime where the actions taken, although legally wrong, are intended to prevent a worse outcome and the actions are not disproportionate to the harm to be avoided.
‘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 disproportionate to the evil avoided. The extent of this principle is unascertained’.” (Sir James Fitzjames Stephen’s Digest of the Criminal Law (1st. ed., ch. 3, art. 43; 9th ed., ch. 2, art. 11) cited in R v Loughnan  VicRp 43).
So assume you grab a person out of harms way in circumstances that are technically a battery but your aim is to avoid worse consequences (ie their death) and you took no more action and applied no more force than was necessary to achieve that objective, then you may be able to rely on the defence of necessity.
But to return to Lord Goff and In Re F, necessity can’t justify action contrary to the known rational wishes of the informed person. Rational does not mean you have to agree with them. A person, in my view, could be quite rational if they say they would rather stay in their home and try to preserve the lives of their pets rather than evacuate and leave them to certain death. You may not agree but that doesn’t make the decision irrational.
What it’s going to come down to is the urgency of the situation. Pulling someone from a burning building because it’s necessary to not only save their life but because the rescuer also doesn’t have time to debate the issue is one thing. Pulling someone from a building that is likely to flood in the next few hours when they have quite rationally explained their desire to stay and given their reasons for the decision is another.
So let’s return to the video that my correspondent gave a link to. The issue here is not the law. I would infer that the people in that video couldn’t have dragged the driver out of the car even if they’d wanted to but I’m sure if they had there would have been no legal wrong. The issue here is much more basic and it’s about the first rule of rescue, don’t put yourself in danger. A number of those rescuers were washed away and we’re not told if they lived or died. But it would have been quite reasonable to simply leave her, if she didn’t want to get out there’s no point killing yourself trying to force her.
Emergency services have various statutory defences that would protect their members but I haven’t discussed those as the video that was the stimulus for this question was about citizen rescuers. But even so the cost in resources is, I suggest, a major reason why the Australian emergency (and in particular fire) services have resisted forced evacuations. They all have various legislative powers to require people to evacuate but why would you want to divert resources and expose emergency service workers to heightened risk forcing people to leave who don’t want to? For further discussion, see:
- Legality of forced evacuations during NSW Bushfires (January 10, 2014)
- Mandatory evacuations (December 26, 2015)
- Compulsory evacuations in Melbourne (February 8, 2016).
The question I was asked was ‘to what extent can a forceful entry be conducted to save a life that either doesn’t want to leave or doesn’t want to live. This would also include forcefully handling the victim?’ The answer has to depend on the circumstances. There is a difference between pulling a person from a building that may in due course, be in the path of the oncoming bushfire or flood, particularly when they have a clear and articulated desire to stay; and pulling someone from an apartment where the fire is well engaged.
For them the doctrine of necessity would be expected to provide a defence if in the circumstances both potential rescuers and the person needing to be rescued face an imminent peril (in the case of the video, being washed away by flood water) and the actions taken were reasonable and proportionate to avoid that peril and the harm done (an unlawful touching) was not disproportionate to the harm avoided (in this case death).