62Risk management—agency liability

#### 62 Risk management—agency liability 62 Risk management—agency liability > > (1) A person who suffers injury, damage or loss as a result of the failure of an agency to comply with the agency’s obligations under section 61(2) may recover damages under this section for the injury, damage or loss in a court of competent jurisdiction. > > > (2) The damages may be recovered— > > > > > (a) if the agency is a person—from the agency, or > > > > > (b) if the agency is not a person—from the State. > > > (3) In proceedings under this section, the defendant bears the onus of proving— > > > > > (a) the agency did not fail to comply with its obligations under section 61(2), or > > > > > (b) if the agency failed to comply with its obligations—the injury, damage or loss was not suffered as a result of the failure. > > > (4) Damages recovered under this section may include damages in the nature of exemplary damages. > > > (5) A person is not entitled to recover damages in relation to the same detrimental action under both this section and any of the following provisions— > > > > > (a) the [Independent Commission Against Corruption Act 1988](/view/html/inforce/current/act-1988-035), section 79J, > > > > > (b) the [Ombudsman Act 1974](/view/html/inforce/current/act-1974-068), section 31S, > > > > > (c) the [Law Enforcement Conduct Commission Act 2016](/view/html/inforce/current/act-2016-061), section 97I. > > > (6) In awarding damages under this section, a court must take into account the extent to which the plaintiff has previously received compensation for the injury, damage or loss under section 35. > > > (7) Subject to subsections (5) and (6), a person’s entitlement to recover damages under this section— > > > > > (a) does not affect another right or remedy available to the person as a result of the relevant detrimental action, and > > > > > (b) does not constitute redress in relation to dismissal from employment for the purposes of the [Industrial Relations Act 1996](/view/html/inforce/current/act-1996-017), section 90 or another law. > > > (8) To avoid doubt, liability under this section is not liability in tort. > > Note. > > See also sections 35 and 36.