What survives a late-reported claim in the UK and the US

This page sets out, item by item, what a defendant can normally still obtain when notification is late, and what has normally gone. It gives the United Kingdom and United States positions side by side. It describes what the regimes require. It does not say whether any particular claim is defensible, and nothing here is advice on limitation.

Why is a late-reported claim harder to defend?

Because the two sides of the file decay at different speeds, and the side that decays fastest is the side that answers the question actually in dispute.

Liability in a workplace injury claim usually turns on the state of a specific place at a specific moment. Was the floor wet. Was the guard on. Was the pallet stacked at that height. Was the light out. None of those facts is recorded by the safety management system, because the safety management system records policy, inspection and training, which are facts about the general rather than the particular.

A late claim arrives at a point where the general record is intact and the particular record is gone. The defendant can prove what the system said should happen and cannot prove what happened.

That is reasoning rather than measurement. We are not aware of a published figure for the effect of notification delay on defence outcomes and have not asserted one. Anyone quoting a percentage here should be asked for the source.

How late is late?

Late is not defined by a statute. It is defined by the shortest retention period in the chain, and that is typically the recorder holding the CCTV.

The regimes do set outer limits. Section 11 of the Limitation Act 1980 sets a three year period for personal injury actions in England and Wales, running from the later of the date the cause of action accrued and the claimant’s date of knowledge (https://www.legislation.gov.uk/ukpga/1980/58/section/11). In the United States, limitation is a matter of state law and varies, and workers’ compensation systems run their own notice clocks: New York Workers’ Compensation Law section 18 requires written notice to the employer within thirty days of the accident (https://www.nysenate.gov/legislation/laws/WKC/18), and California Labor Code section 5400 sets a comparable thirty day notice requirement (https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=5400.&lawCode=LAB).

The gap between those two clocks is the whole problem. A claimant can be well inside the limitation period while every item of scene evidence has already expired on a cycle measured in weeks.

What typically survives

Written records held to a statutory retention period, and records of systems rather than events.

In the United Kingdom, an entry in the RIDDOR record, described in full in RIDDOR explained, must be kept for at least three years from the date it was made (https://www.legislation.gov.uk/uksi/2013/1471/regulation/12/made), and accident book particulars under regulation 25 of the Social Security (Claims and Payments) Regulations 1979 are kept on a similar footing (https://www.legislation.gov.uk/uksi/1979/628/regulation/25). Risk assessments recorded under regulation 3 of the Management of Health and Safety at Work Regulations 1999 tend to survive because they are live working documents (https://www.legislation.gov.uk/uksi/1999/3242/regulation/3/made). Reports of thorough examination under LOLER regulation 11 survive for their prescribed periods (https://www.legislation.gov.uk/uksi/1998/2307/regulation/11/made).

In the United States, the OSHA 300 Log, the annual summary and the 301 Incident Reports must be retained for five years following the end of the calendar year they cover (https://www.ecfr.gov/current/title-29/subtitle-B/chapter-XVII/part-1904/subpart-D/section-1904.33), and some state requirements run far longer: New York requires the employer’s accident report form to be maintained for at least eighteen years (https://www.nysenate.gov/legislation/laws/WKC/110).

Also likely to survive: payroll and shift records, maintenance contracts, purchase records for the equipment, the safety policy, and the insurance history. What each of those items actually proves, and what it does not, is taken item by item in what evidence defends a workplace injury claim.

What typically does not survive

Anything that describes the scene.

Specifically: closed circuit television footage, photographs that were never taken, the physical configuration of the area, the identity and whereabouts of anyone present who was not a direct employee, and any detailed recollection of the conditions. Also commonly gone are the inspection records superseded by later inspections, because several regimes require only the current record to be kept.

Regulation 6(3) of the Provision and Use of Work Equipment Regulations 1998 illustrates the point. It requires that the result of an inspection “is recorded and kept until the next inspection under this regulation is recorded” (https://www.legislation.gov.uk/uksi/1998/2306/regulation/6/made). That is a rolling window of one. In a claim notified two years later, the inspection record covering the relevant date may have been lawfully superseded, and the employer will have complied with the regulation and still be unable to show the condition of the machine on the day.

Compliance with a retention rule and possession of the useful evidence are two different things, and a rolling record satisfies the first while defeating the second.

What happens to CCTV first?

It overwrites itself, on a schedule nobody reconsiders, without any human decision.

The Information Commissioner’s Office states that the UK GDPR and the Data Protection Act 2018 “do not prescribe any specific minimum or maximum retention periods which apply to surveillance systems”, and that the purpose of the processing should determine the retention period (https://ico.org.uk/for-organisations/uk-gdpr-guidance-and-resources/cctv-and-video-surveillance/guidance-on-video-surveillance-including-cctv/how-can-we-comply-with-the-data-protection-principles-when-using-surveillance-systems/). Data protection pressure runs towards shorter retention. An operator who keeps footage for a year because it might help in litigation has acquired a different compliance problem in order to solve this one.

The consequence for a late claim is absolute rather than partial. Footage does not degrade. It is present or it is not, and after the cycle has turned it is not.

In the United States, the question of what follows from that loss is addressed by Rule 37(e) of the Federal Rules of Civil Procedure, which applies where electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and permits measures no greater than necessary to cure prejudice, with more serious sanctions available only on a finding that a party acted with intent to deprive another of the information (https://www.law.cornell.edu/rules/frcp/rule_37). The distinction that matters there is between routine overwriting before any duty arose and deletion after it did.

Do witnesses survive the delay?

Some do. The ones most likely to have seen the accident are the ones least likely to be found.

Direct employees with long service are usually traceable through payroll long after they move roles. Agency workers, subcontractors, hauliers, delivery drivers, visiting engineers and contract cleaners are frequently untraceable within a year, because they were never on the employer’s own systems and the intermediary that supplied them may itself have changed. On sites with high turnover, the population present on the day can turn over substantially before a late claim is notified.

The asymmetry is worth naming. A claimant knows who they are and remains available to their own solicitor throughout. A defendant’s witnesses disperse. Delay therefore does not degrade both sides equally, and that is a structural feature of late notification rather than anything either party has done wrong.

What happens to memory itself?

It keeps the event and loses the detail, and the detail is the part in dispute.

A supervisor two years on will reliably remember that there was an accident near the loading bay. Whether the barrier was in position, how far the spill extended, what the lighting was doing, whether the sign was out: these are the facts that decide the case, and they are the first to go. Worse, the gap fills in. Recollection reconstructs from what the person believes the normal state of the area to be, which produces confident evidence about the usual rather than accurate evidence about the day.

As Gary Davison, Founder and Chairman, has put it in his account of why we started Logincident: “You remember you saw an iceberg; you don’t remember what shape it was.”

That is the argument in one line. Twenty five years of defending claims produced the observation that good cases fail not because the employer was at fault but because the proof of what the scene looked like was never captured and cannot be recovered.

Has the site changed?

Usually, and lawfully, and in ways that are not recorded.

Racking is reconfigured. Machines are moved, replaced or sold. Floors are resurfaced. Lighting is upgraded. A contractor rearranges a yard. Each change is ordinary operational activity and none of it generates a record of the previous layout, because nobody has a reason to document what a working area used to look like.

Two consequences follow for a late claim. A site inspection carried out after notification records the current configuration rather than the relevant one, and its value is limited accordingly. And where the area has been improved since, the improvement can be presented as significant even though it was routine, which is a problem the employer cannot answer without evidence of the earlier state.

Regulation 3 of the Management of Health and Safety at Work Regulations 1999 requires review of a risk assessment where there has been a significant change (https://www.legislation.gov.uk/uksi/1999/3242/regulation/3/made). A reviewed and dated assessment series is, in practice, one of the few records that can establish what an area looked like at a past date.

The photographs nobody took

This is the largest single gap in a late-reported claim, and it is not caused by delay. It is revealed by delay.

No United Kingdom or United States regime requires an employer to photograph an accident scene. The reporting duties under RIDDOR and 29 CFR Part 1904 are duties to record particulars in writing and to notify, not duties to capture the scene. So when a claim arrives late, the absence of photographs is not something that was lost in the interval. There were never any. The interval only removed every other route to the same facts.

The distinction matters when reviewing a file. Footage and witnesses are lost through elapsed time and can sometimes be partially recovered by prompt action. Scene photographs cannot be recovered at all, at any point, by any amount of effort, if nobody took them in the first hour.

What does a late notification change about the process?

The deadlines for responding do not move because the evidence has gone.

In England and Wales, the Pre-Action Protocol for Personal Injury Claims requires the defendant to respond within 21 days to the letter identifying the insurer, and allows a maximum of three months from acknowledgment of the Letter of Claim to investigate and state whether liability is admitted (https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_pic). The low value employers’ liability and public liability protocol runs to shorter periods measured in business days (https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/pre-action-protocol-for-low-value-personal-injury-employers-liability-and-public-liability-claims). Standard disclosure under CPR 31.6 still requires disclosure of documents that adversely affect a party’s own case (https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31).

An investigation window of three months is generous when the evidence is in the file and irrelevant when it is not. The clock does not extend to compensate for a cold trail, which is why the outcome of a late claim is largely settled before the first letter is opened.

Frequently asked questions

Sources

• Limitation Act 1980, section 11: https://www.legislation.gov.uk/ukpga/1980/58/section/11
• RIDDOR 2013, regulation 12: https://www.legislation.gov.uk/uksi/2013/1471/regulation/12/made
• HSE, What records do I need to keep?: https://www.hse.gov.uk/riddor/what-must-i-keep.htm
• Social Security (Claims and Payments) Regulations 1979, regulation 25: https://www.legislation.gov.uk/uksi/1979/628/regulation/25
• Management of Health and Safety at Work Regulations 1999, regulation 3: https://www.legislation.gov.uk/uksi/1999/3242/regulation/3/made
• PUWER 1998, regulation 6: https://www.legislation.gov.uk/uksi/1998/2306/regulation/6/made
• LOLER 1998, regulation 11: https://www.legislation.gov.uk/uksi/1998/2307/regulation/11/made
• ICO, Guidance on video surveillance, data protection principles: https://ico.org.uk/for-organisations/uk-gdpr-guidance-and-resources/cctv-and-video-surveillance/guidance-on-video-surveillance-including-cctv/how-can-we-comply-with-the-data-protection-principles-when-using-surveillance-systems/
• Pre-Action Protocol for Personal Injury Claims: https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/prot_pic
• Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims: https://www.justice.gov.uk/courts/procedure-rules/civil/protocol/pre-action-protocol-for-low-value-personal-injury-employers-liability-and-public-liability-claims
• Civil Procedure Rules, Part 31: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part31
• 29 CFR 1904.33, retention and updating: https://www.ecfr.gov/current/title-29/subtitle-B/chapter-XVII/part-1904/subpart-D/section-1904.33
• New York Workers’ Compensation Law, section 18: https://www.nysenate.gov/legislation/laws/WKC/18
• New York Workers’ Compensation Law, section 110: https://www.nysenate.gov/legislation/laws/WKC/110
• California Labor Code, section 5400: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=5400.&lawCode=LAB
• Federal Rules of Civil Procedure, Rule 37: https://www.law.cornell.edu/rules/frcp/rule_37
• Logincident, Memories fade. The reason we started Logincident has not.: https://www.logincident.com/news/memories-fade-why-we-started-logincident/

Last reviewed: 16 September 2026

About Logincident. Logincident is a data and software company whose configurable platform captures structured evidence at source through a mobile app, forms, photographs, GPS and offline capture, and presents it in dashboards and reports. We are not a law firm or a claims handler, and nothing on this page is legal advice.