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, section 79J,

(b) the Ombudsman Act 1974, section 31S,

(c) the Law Enforcement Conduct Commission Act 2016, 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, section 90 or another law.