Abstract:
The introduction of no-fault or strict liability by the Consumer
Protection Act 68 of 2008 (CPA) poses serious problems in the
health care context. With a patient as a ‘consumer’ in terms of the
CPA, health care practitioners may find themselves as ‘suppliers’
or ‘retailers’ as part of a supply chain, and potentially liable for
harm and loss suffered by a patient in terms of the new no-fault
liability provision. The claimant (patient) can sue anyone in the
supply chain in terms of this provision, which places the health care
practitioner who delivered the care in a very difficult position, as he
or she is the most easily and often only identifiable person in the
supply chain. Although the causal link between the harm suffered
by the complainant will still need to be established on a balance of
probabilities, the traditional common law obstacle requiring proof
of negligence no longer applies. The article argues that this situation
is unsatisfactory, as it places an increasingly onerous burden on
certain health care practitioners.
