Parliamentary Silence and Judicial Innovation: A Case Study on Tort Law Development

Abstract In common law jurisdictions, judicial innovation has played a significant role in shaping the development of tort law, especially when parliamentary guidance was lacking. The dynamic relationship between judicial creativity and parliamentary silence in the development of tort principles is examined in this study. Legislators frequently avoid codifying or changing tort doctrines, but courts have used precedent to address new social, economic, and ethical concerns. This paper examines significant court rulings to show how judges have improved liability principles, broadened the definition of the duty of care, and addressed gaps that Parliament has failed to address. Additionally, the study assesses the conflict between judicial activism and restraint, raising the question of whether courts go beyond their constitutional authority when they serve as de facto policymakers. The study, which raises questions about legitimacy, democratic accountability, and predictability, emphasises how judicial innovation has been crucial in ensuring tort law remains responsive to shifting societal needs. It does this by drawing on case law and comparative perspectives. In the end, the study makes the case that the relationship between judicial innovation and parliamentary silence illustrates both the advantages and disadvantages of a common law system in upholding justice, equity, and flexibility in private law.