1 There was no evidence of the movements of either the bus or the plaintiff in the moments immediately prior to impact and the defendant's submission that there was no case to answer was founded on this proposition.
2 Granting the application now made will not entitle the plaintiff to adduce any evidence of the movements of either the plaintiff or the bus in the moments immediately prior to impact.
3 There was evidence from which an inference could, not should or ought, be drawn that the defendant's servant did not see the plaintiff prior to impact.
4 There was evidence from which an inference could be drawn that the slightest evasive action by the bus would have avoided the collision.
5 It follows from the last two matters that the opportunity of a prudent driver, situated as was the defendant's driver as he approached the scene of the accident, to see the plaintiff playing on a bicycle is an important consideration on the issue of a breach of the duty of care he owed the plaintiff.
6 It was not part of the defendant's submission that there was no evidence of this. It was raised by me with the defendant's counsel during the submission of no case to answer. Until I drew attention to the absence of this evidence learned counsel for the defendant was proceeding on the basis that there was evidence in the form of the view of the scene which I took during the course of the trial.
7 This view enabled me to form some perception of the view a prudent driver would have had of the car park in which the plaintiff had been riding her bicycle and the street ahead on the side of which were standing at least two and perhaps three pedestrians. However, because counsel agreed that the view was not to be taken as evidence I could not take into account that which I saw. However, P1, an aerial photograph, prima facie indicates that there was nothing to restrict that view into the car park.
8 I am satisfied that the failure to adduce the evidence of the view of a driver in the position of the defendant's driver was entirely due to inadvertence.
9 Had this application been made at the end of the plaintiff's case but before the defendant had been put to its election there is no doubt that the justice of the case would have required that it be granted.
10 Provided the defendant is no longer bound to its election, the justice of the case still requires that the application be granted. Once the defendant is freed from the election it made and permitted to call any evidence it wishes, no prejudice will result from an order granting the application. It was not submitted that the conduct of the defendant's case prior to making an election to call no evidence and the submission of no case to answer was in any way affected by the absence of the evidence now sought to be called.