Injured workers often make claims for damages against employers, alleging the employer’s negligence caused their injuries. Records such as incident reports, training documents, risk assessments and safe work method statements are crucial to an employer’s ability to defend claims for damages by injured workers.

With these documents, an employer can:  

• disprove a false allegation by a worker about an incident

• prove it was not negligent. It can prove that they discharged their duty of care to the worker through sufficient training and a safe system of work

How long should an employer hold on to injury and safety documents? 

Employers don’t need to keep injury and safety records forever, because in Queensland claims for damages for work-related injuries are subject to a 3 year limitation period (1). The limitation period can be extended in certain circumstances, but generally speaking workers have only 3 years to make a claim, after which it is statute barred.  

Limitation periods for civil claims have existed for over 400 years, because of the general perception that with the passage of time the quality of the evidence deteriorates. The law requires civil proceedings to be started and prosecuted promptly.  

Why there are 4 compelling policy reasons limitation periods exist

• The longer the delay, the more likely it is that key witnesses die or disappear, or key documents get lost or destroyed

• It is unfair to a defendant to allow a claim to be brought against it long after the incident happened

• Employers should be able to conduct their affairs and utilise their limited resources knowing that after a period of time claims will not be made against them

• If liability for employers was not subject to limitation periods, workers compensation insurance would not be affordable or even possible (2)

When can a worker extend the limitation period and why?

A worker can extend the limitation period, if they can prove that a material fact of a decisive character came into their knowledge after the 3 year period expired. For example, if a worker suffered a lower back strain at work in 2019, but then learned in 2023 (i.e. 4 years later) that they require surgery for the condition, then the court has a discretion to extend the limitation period, subject to the worker proving they had a right of action despite the claim being out of time (3). 

Whether a worker has a right of action depends among other things on whether the late commencement of the claim puts the employer in a position of prejudice. A prejudiced employer is one which can’t fairly defend the claim at trial.  

In Kelaart v Coca-Cola Amatil (Aust) Pty Ltd (4) the Plaintiff suffered a back injury over a period of time from 2001 to 2003 from using a bottle palletiser machine. He commenced legal proceedings in 2017. He applied to the court to extend the limitation period but failed, because the delay (about 15 years) was “inordinate”. In deciding whether or not a fair trial could take place, the court noted: 

• There were photos of the relevant machinery, but it was no longer in operation and had been replaced

• An investigation into the incident was unable to be located

• The Plaintiff located many relevant witnesses, but the employer could not. The Court said of the available witnesses, “Of course, it is complete speculation as to what those witnesses may be able to say after the period of time that has now elapsed.”

• Overall the delay was enough for the court to presume that the employer would be in a position of significant prejudice if the matter went to trial

So, how long should employers keep all the documents potentially necessary to defend damages claims?

We’re conscious the full suite of documents (incident reports, training records, staff meetings, safe work method statements etc) can in many cases be voluminous, and understandably employers don’t want to store unnecessary physical and digital documents.

We’d recommend that employers keep these documents for a period of 7 years, after which they can be destroyed. The reasons why we recommend a period of 7 years are: 

• While injured workers have 3 years to make a claim, the courts often extend limitation periods, but rarely beyond 7 years. Usually after 7 years, systems of work change and the memory of witnesses is compromised to the extent that no reliable recollection of events can be provided

• In some cases it can be advantageous to an employer to have documentation going back several years to prove that a safe system of work and / or sufficient training was in place. Take for instance the issue of manual handling training - if an employer can prove that an employee was trained and then annually retrained for many years, it can help prove that its obligation to train was discharged

• The period of 7 years corresponds with the mandatory time period for keeping certain employment-related records relating to salary, reimbursements, workers compensation and superannuation

If you have any questions concerning the retention of safety, training and injury records, please do not hesitate to contact Hughes & Lewis Legal. 

About the author

Duncan Hutchings is a Consultant of Hughes & Lewis Legal

Contact
info@hughesandlewis.com.au

References

1. Section 11 Limitation of Actions Act 1974

2. The 4 policy reasons are a paraphrasing of those listed by McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25

3. Section 32(1) Limitation of Actions Act 1974

4. [2020] VCC 1219 (5 August 2020)