LME3701
Assignment 3 Final Research Proposal Semester 1 2026
Unique number:
Due date: 2 June 2026
TABLE OF CONTENTS
HISTORICAL APPROACH ........................................................................... 3
Historical Development of Civil Medical Negligence Claims In South African
Public Healthcare System ........................................................................... 3
COMPARATIVE APROACH ....................................................................... 17
Resolving Medical Negligence Claims: A Comparative Study of South Africa
and New Zealand ...................................................................................... 17
,TABLE OF CONTENTS
HISTORICAL APPROACH............................................................................ 3
Historical Development of Civil Medical Negligence Claims In South
African Public Healthcare System ............................................................... 3
COMPARATIVE APROACH ....................................................................... 17
Resolving Medical Negligence Claims: A Comparative Study of South
Africa and New Zealand ............................................................................ 17
,HISTORICAL APPROACH
Historical Development of Civil Medical Negligence Claims In South African
Public Healthcare System
1. Introduction
Medical negligence litigation has developed into a serious legal and administrative
concern within South Africa's public healthcare system. During the last two decades,
claims against provincial health departments have grown sharply, especially in
matters involving obstetric harm, birth injuries and cerebral palsy. These claims have
carried major financial consequences for the state and have placed pressure on
public funds that are also needed for the daily delivery of healthcare services. The
increase in litigation has therefore raised important questions about financial
sustainability, public accountability and the ability of vulnerable patients to obtain
proper remedies when they have been harmed by negligent treatment.1
The law regulating medical negligence in South Africa has mainly developed from
the common law of delict. That law has been shaped by court decisions and, after
1994, by the values contained in the Constitution. The decision in Kruger v Coetzee 2
remains important because it set out the general test for negligence, including what a
reasonable person would have foreseen and done in the circumstances. In Minister
of Health v Goliath3, the court also dealt with the liability of the state in a public
healthcare context. These principles do not operate in isolation, because the
Constitution protects dignity, life, bodily integrity and access to healthcare services.
These rights influence the way courts understand medical negligence claims,
especially where the defendant is a public hospital or a provincial health
department.4
1 South African Law Reform Commission, Medico-Legal Claims Issue Paper 33 (Project 141, 2015).
2 Kruger v Coetzee 1966 (2) SA 428 (A).
3 Minister of Health v Goliath 2008 (2) SA 248 (C).
4 Constitution of the Republic of South Africa, 1996 ss 10, 11, 12 and 27.
, This research used a historical approach to trace how civil medical negligence
claims in South Africa have moved from the pre-constitutional period into the present
constitutional era. The focus was placed on the way courts have approached
negligence, causation and damages in claims arising from public healthcare
institutions. The study also considered whether the present civil litigation model has
been able to protect patients' constitutional rights while still allowing the public
healthcare system to remain financially and practically sustainable.
2. Problem Statement
The fast growth of civil medical negligence claims against provincial health
departments has revealed serious weaknesses in the current delictual system. The
common-law test for negligence, as stated in Kruger v Coetzee 5, requires a claimant
to prove the existence of a legal duty, breach of that duty, causation and damages.
Although this legal structure is clear in theory, it has become difficult to apply in
complicated medical cases. This difficulty is especially visible in high-value obstetric
matters, where the factual and scientific issues are often complex and the damages
claimed may be very large. As a result, the increasing number and value of awards
have created pressure on provincial health budgets and may affect the state's ability
to realise access to healthcare progressively under section 27 of the Constitution.6
The central legal problem was whether the historical development of civil medical
negligence law has created a litigation system that balances two constitutional
demands fairly. On the one hand, patients who suffer harm through negligent
healthcare are entitled to accountability, dignity, bodily integrity and access to courts.
On the other hand, the public healthcare system must remain sustainable so that it
can continue serving the wider population.7
The South African Law Reform Commission has already recognised the seriousness
of the medico-legal claims problem and has considered possible reforms, including
5 Kruger v Coetzee (n 2).
6 Constitution (n 4) s 27.
7 Constitution (n 4) ss 10, 12(2) and 34.
Assignment 3 Final Research Proposal Semester 1 2026
Unique number:
Due date: 2 June 2026
TABLE OF CONTENTS
HISTORICAL APPROACH ........................................................................... 3
Historical Development of Civil Medical Negligence Claims In South African
Public Healthcare System ........................................................................... 3
COMPARATIVE APROACH ....................................................................... 17
Resolving Medical Negligence Claims: A Comparative Study of South Africa
and New Zealand ...................................................................................... 17
,TABLE OF CONTENTS
HISTORICAL APPROACH............................................................................ 3
Historical Development of Civil Medical Negligence Claims In South
African Public Healthcare System ............................................................... 3
COMPARATIVE APROACH ....................................................................... 17
Resolving Medical Negligence Claims: A Comparative Study of South
Africa and New Zealand ............................................................................ 17
,HISTORICAL APPROACH
Historical Development of Civil Medical Negligence Claims In South African
Public Healthcare System
1. Introduction
Medical negligence litigation has developed into a serious legal and administrative
concern within South Africa's public healthcare system. During the last two decades,
claims against provincial health departments have grown sharply, especially in
matters involving obstetric harm, birth injuries and cerebral palsy. These claims have
carried major financial consequences for the state and have placed pressure on
public funds that are also needed for the daily delivery of healthcare services. The
increase in litigation has therefore raised important questions about financial
sustainability, public accountability and the ability of vulnerable patients to obtain
proper remedies when they have been harmed by negligent treatment.1
The law regulating medical negligence in South Africa has mainly developed from
the common law of delict. That law has been shaped by court decisions and, after
1994, by the values contained in the Constitution. The decision in Kruger v Coetzee 2
remains important because it set out the general test for negligence, including what a
reasonable person would have foreseen and done in the circumstances. In Minister
of Health v Goliath3, the court also dealt with the liability of the state in a public
healthcare context. These principles do not operate in isolation, because the
Constitution protects dignity, life, bodily integrity and access to healthcare services.
These rights influence the way courts understand medical negligence claims,
especially where the defendant is a public hospital or a provincial health
department.4
1 South African Law Reform Commission, Medico-Legal Claims Issue Paper 33 (Project 141, 2015).
2 Kruger v Coetzee 1966 (2) SA 428 (A).
3 Minister of Health v Goliath 2008 (2) SA 248 (C).
4 Constitution of the Republic of South Africa, 1996 ss 10, 11, 12 and 27.
, This research used a historical approach to trace how civil medical negligence
claims in South Africa have moved from the pre-constitutional period into the present
constitutional era. The focus was placed on the way courts have approached
negligence, causation and damages in claims arising from public healthcare
institutions. The study also considered whether the present civil litigation model has
been able to protect patients' constitutional rights while still allowing the public
healthcare system to remain financially and practically sustainable.
2. Problem Statement
The fast growth of civil medical negligence claims against provincial health
departments has revealed serious weaknesses in the current delictual system. The
common-law test for negligence, as stated in Kruger v Coetzee 5, requires a claimant
to prove the existence of a legal duty, breach of that duty, causation and damages.
Although this legal structure is clear in theory, it has become difficult to apply in
complicated medical cases. This difficulty is especially visible in high-value obstetric
matters, where the factual and scientific issues are often complex and the damages
claimed may be very large. As a result, the increasing number and value of awards
have created pressure on provincial health budgets and may affect the state's ability
to realise access to healthcare progressively under section 27 of the Constitution.6
The central legal problem was whether the historical development of civil medical
negligence law has created a litigation system that balances two constitutional
demands fairly. On the one hand, patients who suffer harm through negligent
healthcare are entitled to accountability, dignity, bodily integrity and access to courts.
On the other hand, the public healthcare system must remain sustainable so that it
can continue serving the wider population.7
The South African Law Reform Commission has already recognised the seriousness
of the medico-legal claims problem and has considered possible reforms, including
5 Kruger v Coetzee (n 2).
6 Constitution (n 4) s 27.
7 Constitution (n 4) ss 10, 12(2) and 34.
