How Is Basic Protection Compensation Claimed and Paid?

The Act was drafted to be used without lawyers, in the District Court, within weeks of a death. Its procedure is short, and the sections are set out here in the order a family would meet them.

The assessment officer

An assessment officer is a person appointed by the Minister by notice in the National Gazette for a specified area (section 5), but the practical answer is section 6: “a Magistrate of a District Court and a coroner are, by virtue of their offices, assessment officers and have jurisdiction, power and authority throughout the country”. Any District Court can therefore deal with an application. The officer may appoint up to three assessors to assist, though they cannot make the determination (section 7). The Coroners Act is unaffected, and a coroner is not bound by the assessment officer’s decision (section 4).

Starting the inquiry

Under section 8, where the officer has reasonable cause to believe a death was directly or indirectly attributable to the use of a motor vehicle, he may hold an inquiry of his own motion and must do so “as soon as practicable after receiving a request” from an entitled person, a member of the Police Force or the Minister. If he cannot conclude it within two weeks of the request he must report to the Minister explaining why (section 8(2)). The request need not be in any form; a letter to the Clerk of Court, or an oral request to the magistrate, is enough to trigger the duty.

How the inquiry runs

An inquiry may be transferred to another officer, for reasons recorded, at any time before decision (sections 13 and 14).

The determination and the award

At the end the officer determines whether the death was directly or indirectly attributable to the use of a motor vehicle (section 15). If it was, he determines at the same time, where the deceased was not an occupant, which vehicle was most closely associated with the death “where it is possible to do so”, and, where the compensation goes to the kinship group, who is its head (section 16). He then awards compensation to the entitled person or persons in such amounts as he fixes, subject to the K10,000 maximum, having regard to customary disposition of property on death, any economic loss suffered by the entitled persons, and any other relevant factor (sections 18 and 19). The award may carry conditions — for example, that a child’s share be held for the child. Certified copies go to the Minister for Justice, the Minister, the entitled persons and MVIL (section 21).

Payment and enforcement

The award must state whether MVIL, the State, or both are liable, according to the rules in section 20: MVIL for occupants of non-Government vehicles and deaths most closely associated with them; the State for Government vehicles; both, in Ministerial proportions, otherwise. Compensation is payable “within the prescribed time and in the prescribed manner”, and late payment attracts interest at 5 per cent a year from the due date (section 20(5)). The award “operates as an order for the payment of a sum of money under the District Courts Act” and may be entered in the records of the District Court where it was made (section 22), so the ordinary District Court enforcement machinery is available. The site’s District Court series explains it.

Recovery from the owner of an uninsured vehicle

Where MVIL or the State has paid in respect of an uninsured, unidentified or unknown vehicle, section 23 lets it recover the amount as a debt from the owner, or from the owner and driver, with the same defences as under section 57 of the principal Act: the owner escapes if someone drove without authority, the driver if he reasonably believed he had authority and that the vehicle was insured. Section 24 lets MVIL recover from the State if a court later finds the death was not attributable to a motor vehicle at all.

Challenging an award

There is no appeal in the Act. An award can be challenged by judicial review in the National Court. In MVIL v Estate of Prose Manus Ove [2015] PGNC 165; N6063 MVIL sought review of a 2002 award of K2,500 to the estate of a deceased who had been engaged in criminal conduct when killed, arguing that his relatives should not benefit from it. The court accepted the public policy point and made a declaration, but refused certiorari because of MVIL’s long delay, noting that the award was by then a court order whose enforcement period had itself lapsed. Section 28 gives the officer immunity for acts done in good faith, with the burden of proving bad faith on the challenger.