Essay on the concept of injury: A comparative study of tort law and French tort law.

Summary The variety of recognized heads of damage and the broad appreciation of their characteristics leads to a focus on the very notion of damage in order to give coherence to its judicial reparation. As these observations are also true in common law, a comparison with French law allows us to draw some lessons from this evolution. Defined as the injury to an interest, prejudice has traditionally been linked to the sole idea of a loss, a notion of fact left to the appreciation of the judge. The progressive admission of different forms of extrapatrimonial prejudice, however, emphasizes that prejudice also reflects an injury. This moral aspect is unequally present in the different types of prejudice, depending on their degree of attachment to a material reality, thus helping to determine their reparable nature, even if this selection also depends on other factors. Considering the prejudice not only as a loss to be compensated but also as an infringement to be sanctioned adds a legal and more objective dimension to the factual and subjective assessment of the latter, favouring the establishment of mechanisms to regulate its evaluation. From a procedural point of view, this new approach legitimizes the assistance of an institution outside the victim. Finally, this evolution invites us to clarify the meaning of the principles governing civil liability, which are full reparation and the modalities of reparation, as well as the distinction between civil and criminal liability.