What Is Basic Protection Compensation?

The damages claim described elsewhere in this series takes years and requires proof of negligence. Parliament recognised in 1974 that a family whose breadwinner has just been killed needs something faster and simpler. Chapter 296 is that something.

The essential features

• Death only. The Act does not apply to injuries, however severe. An injured person’s only remedy is a damages claim.
• No fault. The assessment officer determines only whether the death “is directly or indirectly attributable to the use of a motor vehicle” (section 15). Who was negligent is irrelevant. The dependants of a driver killed through his own bad driving qualify; so do the dependants of a pedestrian who walked into the road.
• Any motor vehicle. Insured, uninsured, unidentified or belonging to the State; on a public street “or otherwise” (section 20(3)). Since the 2021 amendment, “motor vehicle” includes mining, petroleum, logging and agricultural project equipment.
• The 90-day rule. Section 3 excludes a death from injuries where “the death occurred more than 90 days after the accident”. A person who lingers for four months in hospital is outside the Act, though the dependants keep their damages claim.
• A fixed maximum. Originally K2,000 for a dependent wife or child and K1,500 otherwise; then K5,000 and K2,500; and since 21 September 2021, K10,000 in every case (new section 18).

Who receives it

Section 17 directs the compensation to the “dependent wife” or “dependent child” if the deceased left either, and otherwise to the head of the deceased’s “immediate customary kinship group” “as agent for all members of that group”. The definitions in section 1 are worth knowing. A dependent wife is a wife who was wholly or partly dependent on the deceased, “by custom or otherwise”. A dependent child includes an ex-nuptial child and a person to whom the deceased stood in loco parentis. The immediate customary kinship group comprises any wife or child who was not dependent, and “any member of the family, extended family, sub-clan or clan to which he was most closely affiliated during his lifetime, who is entitled to a beneficial share in the customary estate of the deceased”. In assessing the shares the officer must have regard to “customary disposition of property on death” and to economic loss (section 19(3)).

Disputes about who is entitled do reach the courts. In Gene v MVIT [1997] PGNC 99; N1604 the K5,000 was paid to the deceased’s mother and uncle rather than to the widow, who sought relief in the National Court. Where the recipients are children, the court’s protective jurisdiction applies: in Tapie v MVIT [1986] PGNC 28; [1986] PNGLR 78 the court held that the safeguards applying to infants’ money in the National Court “should apply also to awards made by an assessment officer to or for an infant”, and refused to sanction a later settlement without proof that the children had received their Basic Protection money.

Who pays

Section 20 allocates the liability. Where the deceased was an occupant of a vehicle other than a Government vehicle, or a non-occupant most closely associated with such a vehicle, MVIL pays. Where the vehicle was a Government vehicle, the State pays. In any other case — typically an unidentified vehicle — MVIL and the State pay in proportions the Minister determines. The award must specify who is liable. Payment is due within the prescribed time; late payment attracts interest at 5 per cent a year (section 20(5)). MVIL’s section 42 cash reserve of K4,000,000 is required to cover these obligations as well as damages.

Relationship to the damages claim

Basic Protection Compensation is an advance, not an alternative. Section 25 provides that an award “does not affect the right” of the recipient to sue for damages, but that “any damages awarded ... shall be reduced by the amount of compensation awarded” under the Act. The courts apply this routinely: Nolnga v MVIT [1991] PGNC 68; [1991] PNGLR 436 (K1,500 deducted from K14,566.72); Kopon v MVIT [1992] PGNC 29; N1084 (K2,000 deducted). Section 54(2) of the principal Act excludes the Basic Protection claim from the section 54 procedure, so no notice of intention to claim is needed for it — although MVIL’s payment of it has been treated as evidence of notice for the damages claim (MVIL v Pojari [2005] PGSC 25; SC799). The next two articles cover the procedure and the interaction with damages in more detail.