Kelly v Beuzeville

Parties: Payton John Kelly by his tutor Bradley Kelly (Plaintiff)
Michael Trevor Beuzeville (Defendant)

Representation: Counsel:
G Smith (Plaintiff)
T Chester (Defendant)
Solicitors:
Johnston Legal (Plaintiff)
Meridian Lawyers (Defendant)

File Number(s): 2023/00462985

JUDGMENT – duty – ex tempore (revised)

1. This is an application for judicial approval of a settlement pursuant to s 76(3) of the Civil Procedure Act 2005 (NSW) (‘the Act’). The approval is necessary because the plaintiff Payton John Kelly is presently 10 years of age and is therefore under a legal incapacity.

Background

2. The plaintiff was born on 27 September 2013. He is the son of Bradley Kelly, who is the tutor in the proceedings.

3. On 30 December 2020, when the plaintiff was 6 years of age, he was at the Forbes Aquatic Centre with his family and friends. The defendant was driving his boat in a dam, towing several children on an inflatable sea biscuit. As the boat passed a boat ramp, the defendant performed a sweeping manoeuvre to the right and to the left. At this point, one of the children fell off the biscuit. The defendant slowed down to pick up the child. He then accelerated and the biscuit hit the wake of the boat and then struck some rocks which were protruding from the water which caused the plaintiff’s older brother to be tipped from the biscuit onto the rocks. As a result, the plaintiff’s brother suffered a traumatic brain injury. The accident and its aftermath were witnessed by the plaintiff and family members.

4. In 2023, the plaintiff commenced proceedings in this Court alleging negligence. Liability has been admitted by the defendant.

5. Damages are to be assessed pursuant to the Civil Liability Act 2002 (NSW).

6. The matter has settled subject to the approval of the Court.

7. In support of the application for approval, I received the following:

8. An affidavit of the plaintiff’s tutor Bradley Kelly sworn on 9 September 2025;

9. An affidavit of Mark Henry Johnston, the plaintiff’s solicitor, sworn on 1 September 2025, annexing reports of psychiatrists Associate Professor Michael Robertson dated 19 July 2024 and Dr Chris Rikard-Bell dated 17 May 2025 (x2) and a proposed Consent Judgment; and

10. A confidential advice of Mr Gary Smith of counsel dated 4 September 2025.

Relevant principles

8. In an application for approval of a settlement pursuant to s 76(3) of the Act, the Court’s function is protective. The ultimate question is whether the proposed settlement is beneficial to the interests of the plaintiff, or in his best interests: Permanent Trustee Co Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 (“Mills”) at [29]; Budini v Sunnyfield [2021] FCA 1540 at [10].

9. It is the Court’s responsibility to determine this question, albeit with the assistance of confidential advice provided by counsel for the plaintiff: Mills at [29]; Scandolera v Victoria (Department of Education and Early Childhood Development) [2015] FCA 1451 (“Scandoler**a”) at [27].

10. In its determination, the Court is to consider the “advantages and disadvantages of the litigation continuing not only in terms of whether [the plaintiff] might secure a more advantageous award from the Court at trial, but also issues such as the prospects of an appeal and the costs and pressures imposed on [the plaintiff] if the litigation were to continue”: Scandolera at [29].

11. The tutor must also assent to the compromise, which has occurred here.

Consideration

12. The defendant has admitted that it breached its duty of care to the plaintiff. There is no dispute that the plaintiff has suffered a recognised psychiatric injury and that he will require some psychological assistance in the future.

13. The only question in the proceedings is the quantum of damages available to the plaintiff.

14. I have carefully considered the opinions and conclusions of counsel in the confidential advice. I have also taken into account the matters and opinions expressed by Mr Johnston and Mr Kelly in their respective affidavits, as well as the advantages and disadvantages of this litigation continuing.

15. In my view, there is a significant risk that the plaintiff will receive an amount in damages that is less than the settlement amount should the matter proceed to hearing.

16. Bearing in mind all the material that has been placed before me, in my opinion the proposed settlement is beneficial to, and in the best interests of, the plaintiff.

Orders

17. I make the following orders:-

18. I approve the settlement set out in the Consent Judgment pursuant to s 76(4) of the Act.

19. Judgment for the plaintiff in the sum set out in paragraph 1 of the Consent Judgment (the Judgment Sum).

20. The defendant to pay the plaintiff’s costs as agreed or assessed.

21. I note paragraphs 2, 3, 4, 5, 6, 7, 8, 10, 11, 12 and 13 of the Consent Judgment.

22. Pursuant to s 77(3) of the Act, the net Judgment sum after deductions referred to in paragraphs 4 and 6 (if any) of the Consent Judgment, is to be paid by the defendant into Court or directly to the NSW Trustee and Guardian for investment until the plaintiff’s 18th birthday.

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Amendments

22 September 2025

Correcting typo in coversheet orders; correcting typo in catchwords.