Cour de cassation:

Given that it emerges from the findings of the judges below that the Mouniers retained the defendant, M. Bernard, a dental surgeon, to correct the dentition of their eight-year old son whose upper incisors were protruding; that he prescribed for daily use as from 8 March 1988 a traction device, external to the mouth, of American manufacture, consisting of two curved metal bands tied with elastic to a head-band; that on 3 July when the boy, having had his dinner, sought to remove the device from his head without first undoing the elastic, the sharp end of the metal band inside the mouth struck and perforated his right eye, now sightless; that his parents, acting in their own name and as administrators of their son’s person and estate, sued M. Bernard and his insurer for damages; and both defendants were held liable by the judgment under attack (Poitiers, 8 April 1992);

On the first ground of the defendants’ application for review:

Given that M. Bernard and his insurer criticise the court of appeal for deciding against them when, according to them, the only information which a medical practitioner is bound to give is about normally foreseeable risks, not those which are exceptional, so that in charging M. Bernard with failing to inform the parents of a risk which, on the very evidence of the experts, is of rare occurrence, it violated article 1147 Code civil;

But given that far from accepting that the risk was exceptional, the court of appeal, using its sovereign power of interpreting the facts, held that the very design of the device was dangerous to the knowledge of the dentist as a specialist aware of the fact that there had been serious accidents of this kind in Germany and the United States; that it could therefore properly infer that the dentist failed in his obligation to give the parents information about the intrinsic danger of the device, which could have led them to refuse the treatment; from which it follows that this criticism is unfounded;

On the second ground of application for review:

Given that the defendants criticise the decision in that, according to them, the court, having agreed with the experts’ report that the dentist’s diagnosis was accurate, the proposed mode of treatment for the child’s problems quite proper, and the technique employed -- the “head cap”, using force outside the mouth -- one which had been widely used for thirty years and was suitable for a boy of his age, then proceeded to hold that the dentist was at fault in prescribing a device widely used and scientifically approved, and so did not draw the necessary correct conclusions and thereby violated article 1147 Code civil; furthermore, as to the duty (obligation de résultat) of the dental surgeon to guarantee that the apparatus he supplies is fit for the purpose, the court of appeal provided no legal basis for applying the text cited since made no finding that the device was in any way defective; and finally since the conduct of a minor can, as a matter of causation, operate as a total or partial exoneration, the court of appeal could not, without violating article 1147, hold that the child was free from fault when it is agreed that it was seriously foolish of him to detach the device in the teeth of the clear advice given him by M. Bernard;

But given, first, that having sovereign power to evaluate the experts’ report, which it did not adopt in its judgment, the court stated that the experts themselves had spoken of similar accidents abroad which had been reported in 1985 and 1986, and agreed with the concern of parents that such treatment be limited or even suppressed unless it could be rendered completely safe to use; that the court of appeal had no need to state that the device, being dangerous, was defective and was right in law to hold that the dental surgeon who supplies a device is under an obligation de résultat as to the safety of the design of that device as well as the conditions of use; that finally it could properly hold that the child was not at fault since the dentist had not informed him of the danger inherent in the device; that the decision is thus legally justified and not open to any of the criticisms put forward in the application.

For these reasons

DISMISSES the application for review.

This note on subsequent developments reflects the legal situation as of April 2004.

Civ 1, 22 November (see the developments devoted to contractual liability, notes under Civ 1, 15 November 1988 , Bull no 319). This judgment recalls first of all constant case law under which a dental surgeon is, as far as concerns dental treatment, subjected, like a doctor, to a duty of care (obligation de moyens), whereas in respect of the installation of a prosthesis, and as provider of this, he is bound by a strict duty (obligation of resultat) (Civ 1, 15 November 1988, Bull no 319, 17 October 1995, Bull no 369, 10 December 1996, Bull no 445). As far as the obligation to provide information as to the potential dangers of the appliance is concerned, the solution put forward by this judgment seems established in the opinion of legal writers, and all the more so because, since the judgments of the 7 October 1998 (Civ 1, Bull nos 287 and 291) and of the 9 October 2001 (Civ 1, Bull nos 249 and 252), the obligation to provide information extends from now on to exceptional risks (cf notes under Civ 1, 15 July 1999 above). Finally, as to the absence of fault attributable to the patient in default of information on the risks incurred on account of the dangerous character of the appliance supplied if it is used in an abnormal manner, no subsequent decision has been made to invalidate or confirm this solution, which seems to be left to the sovereign powers of appreciation of the judges of the lower courts.

Translation by Raymond Youngs

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