BRUN

Philippe Brun, “Personnes et préjudice”, (2003) 33 //R.G.D.// 187 (CB 217) I**’s no wonder that with potentially limitless interests and kinds of claims in this day and age, we havee no single juridical instrument or method for compensating harm:** “Comment s’étonner dans ces conitions que l’on peine à distinguer derrière ces multiples facettes, les caractères singuliers du préjudice reparable? On ne pourra sans doute pas faire durablemetn l’économie d’un débat sur cette multiplicité des intérêts don’t la responsabilité civile est censée se saisir; on ne règle pas la difficulté, nous semble-t-il, en concluant qu’il est de l’essence de cette institution juridique d’assumer diverses functions…” FIRST, we need to agree on a definition of //préjudice// – is it distinct from //dommage//? (*Brun thinks that what is important is to focus on categories of //dommage// rather than categories of //préjudice)// Some say that //dommage// refers more to the actual attack on a person or thing, while //préjudice// refers to the patrimonial and extra-patrimonial consequences on the victim that flow from that attack. There are 3 advantages to this distinction: - in the vast majority of cases, the victim cannot really be restored to the situation n which she found herself before the harm happened, so it’s better to be honest and say that it’s the //préjudice// that we’re treating in a very general way, as best we can - Brun considers the possibility of //préjudice//(defined as injury to an interest) and //dommage// (the attack itself, whether or not it is //préjudiciable//) as being separately justiciable: the former lends itself more to compensation; the latter can allow for stigmatization of the responsible party à the Cour de cassation doesn’t seem so far off from such a distinction in that in cases of attacks on //la vie privée//, the victim does not have to prove //préjudice// – this is understandable if we acknowledge that the judge’s role in certain areas (especially cases of //droits de la personnalité//) is **not** so much to **measure** the extra-patrimonial injury to a specific victim’s interests (//préjudice//), **but to** **stigmatize the attack on liberty because such an attack is an affront to //society//** - ex. There was a huge outcry against the cour de cassation after a woman who suffered an accident wanted to claim for various //prejudices//, including loss of revenue, some of which she was earning on the black market. The Cour de cassation did not let her claim for the black market earnings because these were illicit. **Many commentators were outraged and called this a moralizing, outdated, inappropriate approach, saying that the court was way out of line in judging the victim’s conduct** à For Brun, it’s just common sense that the law shouldn’t condemn under-the-table work and then turn around and compensate someone who lost out on under-the-table earnings. It seems obvious that the **//law// would only recognize those interests that are //legally// protected** - ex. In November 2000, the court allowed compensation to a child who was born handicapped after a medical fault prevented him from //not// being born (i.e. a wrongful birth claim). Brun disagrees with this decision. turning back to the definition of //préjudice// as **//la lesion d’un intérêt juridiquement protégé//:** So, finding prejudice requires that there be //lésion// that affects an //intérêt// that’s protected in law. This necessitates comparing the victim’s situation before and after the harmful event. - jurisprudence has gone even farther, adding //certainty// to the required conditions, and yet courts derogate from that requirement when, for example, they allow claims for loss of chance à Brun says that there’s not necessarily anything wrong with that, but that courts should be open and frank about what they are doing in such cases: they are allowing for a **presumption** of //préjudice// à similarly, when courts allow compensation to a person in a vegetative state who cannot speak for him/herself (courts sometimes framing it as an “objective” assessment), Brun thinks it would be better that they openly acknowledge that there is a //presumption// of //préjudice// here - various concepts are sometimes accepted as synonyms for //réparation//: - ex. French law allows for compensation of collective //préjudice// in principle, but then turns around and seems averse to subsidizing associations that claim to defend collective interests - ex. according to the notion of //réparation intégrale// we want to compensate the entire //préjudice// but //only// the //préjudice// – so why does French law tend to sanction behaviour and regulate certain practices under civil responsibility? - ex. French law seems to allow the judge a broad discretionary power to evaluate the //préjudice// – this can be mystifying and doesn’t seem very open or clear, and discussion of scales for evaluating //prejudices// is not evident à various scales [//barèmes//] ARE used, but no one talks about them openly, and this can result in great mystery and incoherence
 * // The concept of harm is a universal requirement in French law but is largely unexplored. Case law has become increasingly open to compensating victims, and claims have expanded to include demands for stigmatization of those responsible. The result is that there is both an increasing number in causes of action giving rise to compensation, and a dilution of the requirements for harm to be actionable. __However, we still have no set, coherent approach to the definition of harm giving rise to compensation.__ //**
 * Intro **
 * our (French) system seems very victim-centric, and yet the law is seldom able to offer satisfying compensation
 * Brun suggests that I. we carefully consider //l’essence du préjudice// and II. we endeavour to give meaning to //réparation//
 * I. Rechercher l’essence du préjudice: ** it is impossible to determine some singular and universal truth about //préjudice//, but we can at least try to single out some identifying characteristics and basic principles
 * A. Le constat du désordre **
 * there //is// a great deal of disorder in this area of the law, as evidenced by (1) the chaotic proliferation of categories for compensable //préjudices//, and (2) an erratic grasp of the criteria required for //préjudice// to give rise to //reparation//
 * there //is no definition// of //préjudice// in the CCQ
 * jurisprudence is pretty incoherent in grappling for a definition, and tends to get tangled up in semantic debates about the difference between //préjudice// and //dommage//
 * B. Les conditions d’une remise en ordre **
 * 1) Pedagogically, this distinction simplifies the analysis: for example, it is simpler to acknowledge ** that //dommage corporel// can give rise to BOTH patrimonial and extra-patrimonial //prejudices// (rather than get bogged down in distinguishing //dommage materiel// from //dommage moral//)
 * 2) This distinction throws light on the emptiness of the notion that //réparation// is the primary function of the law of civil responsibility **
 * 3) This distinction helps to lift the huge ambiguity that has darkened our approach to //préjudice// in doctrine **, which tends to miss the point when insisting too fanatically on the distinction between **fact** and law: //fact// becomes a sanctified, untouchable realm, to the point that commentators all too blindly assert that there are certain areas where the law has no business
 * à **** Brun, however, agrees with the court, //not// because it was moralizing, but because it is simply not the realm of the law to protect illicit interests: “Le préjudice n’est pas cette forteresse du fait que le droit devrait s’interdire d’atteindre. Il n’est reparable qu’autant qu’il reunite les conditions que le droit a fixées […] ** Ce n’est pas defender une conception moralisatrice du droit que de definer le préjudice reparable comme **la lesion d’un intérêt juridiquement protégé.”**
 * à **** even if there was LÉSION, there was no INTÉRÊT because the law //does not recognize// a right //not to be born// **
 * à **** even if there was INTÉRÊT not to have a handicap, there was no LÉSION because the doctor did not //cause// the handicap ** (the doctor merely failed to //detect// it)
 * II. Donner du sens à la reparation: ** this is a discussion that could go on forever – Brun focuses on giving meaning to //réparation// by insisting on transparency and coherence
 * A. L’exigence de transparence **
 * 1. S’entendre sur la notion de reparation: ** first, we should distinguish //réparation// from //indemnisation// as the latter, even as we try to make it as full and complete as possible, can never amount to //réparation intégrale//
 * à **** exécution ** in contractual relations, including all kinds of exécution //en nature// (all sorts of non-pecuniary measures that are pretty satisfactory in giving the creditor what he originally contracted for), look a lot like //réparation//. Some well-known authors (Le Toruneau, Rémy ,et al) go so far as to insist that //responsabilité contractuelle// is a midleading concept, because what we’re really talking about is //exécution//. However, Brun thinks that it’s important to maintain the distinction – otherwise, we risk denying the creditor any acknowledgment that the inexecution on the part of the debtor amounted to some kind of //lesion//; we risk denying the creditor any possibility of claiming to be a victim entitled to payment other than execution of the original obligation. For Brun, //réparation// should have a //sui generis// place in Ks, as it //is// possible to suffer some kind of //préjudice// when a debtor of contractual obligations fails to execute.**,**
 * à **** mechanisms that serve to //prevent// or //stop// an illicit or harmful situation ** are also sometimes conflated with //réparation//, but here again, Brun urges that we maintain a distinction. Obtaining these various measures (compensation, cessation, injunction, etc.) does not require the same conditions as //réparation// and “ces measures preventives n’ont à peu près rien à voir avec la responsabilité civile.”
 * 2. Accorder le discourse et la pratique judiciaire: ** transparency means doing what we say and saying what we do
 * B. L’exigence de coherence: **// réparation // is meaningless if it is not the same for all victims – the proliferation of ways of categorizing and judging creates chaos and inequality (ex. there could be great differences between the approach of the criminal judge and that of the civil judge)