Ajmaya v Transport Accident Commission [2026] VCC 215

1. Mr Ajmaya was born in Iraq in 1990, and grew up in Syria. He migrated to Australia in March 2019. Mr Ajmaya has complained of neck and back pain since that time:
   1. On 8 May 2019, Mr Ajmaya had an appointment with his general practitioner, Dr Haissam Naim, who referred him for a CT scan.[11] A scan of his cervical spine was taken on 10 May 2019.[12]
   2. On 15 May 2019, Mr Ajmaya attended Dr Naim complaining of - among other things - lower back pain, and was given two tablets of Panadeine Forte.[13]
   3. On 18 May 2019, Dr Naim referred Mr Ajmaya to a neurosurgeon and spinal surgeon, Dr Michael Wong.[14]
   4. On 30 May 2019, Mr Ajmaya saw Dr Wong, who reported that Mr Ajmaya had a "2 years' history of neck pain. His neck pain has intermittent radiation to his right forearm. This is associated with intermittent paraesthesia and numbness".[15]
   5. On 11 June 2019, Dr Wong reviewed an MRI scan of Mr Ajmaya's cervical spine.[16] Mr Wong wrote to Dr Naim that the MRI "demonstrated right sided C5/6, C6/7 disc osteophyte complex causing moderate right sided foraminal stenosis. There is mild central canal stenosis but no cord signal change. Given the scan finding, I have organised a right sided C6 and C7 nerve root injection to improve this patient's right arm pain. However, I told Noor that if the effect of the injection were not to be long lasting, then the only treatment forward will be anterior cervical discectomy and fusion".[17]
   6. On 19 June 2019, Dr Wong met with Mr Ajmaya again, and organised for him to receive the nerve root injection.[18] In his further affidavit, Mr Ajmaya said that the injection helped immensely.[19] However, he could not remember when the injection had been administered and the clinical records do not show.
   7. On 5 July 2019, Mr Ajmaya attended an appointment with Dr Naim complaining of low back pain, and was given two tablets of Panadeine Forte and referred for a CT scan of his lumbar spine.[20]
   8. On 13 July 2019, Dr Naim helped Mr Ajmaya to apply for a disabled parking permit, citing back and neck pain (and asthma), and stating that Mr Ajmaya needed additional space to access his vehicle due to his back and neck disc problems.[21] Dr Naim also prescribed Panadeine Forte and an anti-inflammatory drug, Naprosyn.
   9. On 7 February 2020, Mr Ajmaya attended an appointment with Dr Naim complaining of neck pain and was prescribed Panadeine Forte, Naprosyn and Valium.[22]
   10. Between 21 June 2019 and 18 November 2021, there were nine other occasions where Mr Ajmaya attended an appointment with Dr Naim complaining of low back pain and was given two tablets of Panadeine Forte.[23]
   11. Radiological investigations of Mr Ajmaya's spine were also carried out on 3 July 2019, 7 and 10 February 2020, 10 August 2021 and 11 May 2022.[24]
   12. Between 12 August 2021 and 10 May 2022, Mr Ajmaya received at least seven treatments for his spine from a chiropractor, Dr Rami Tawil.[25]
2. The clinical records thus suggest that Mr Ajmaya has suffered from neck and back pain since 2017, and that this condition was sufficiently serious for him to:
   1. Be referred to a spinal surgeon in 2019;
   2. Apply for a disability parking permit in 2019;
   3. Seek chiropractic treatment in 2021;
   4. Be prescribed Panadeine Forte in July 2019 and February 2020, and to be given two tablets of Panadeine Forte on ten other occasions; and
   5. Be referred for radiological investigation in 2019, 2020, 2021 and 2022.
3. However, the clinical records also confirm that Mr Ajmaya had:
   1. Not renewed the disability parking permit when it expired;
   2. Only been prescribed Panadeine Forte on two occasions;
   3. Complained of back pain to Dr Naim (and been given two tablets of Panadeine Forte) with decreasing frequency over the two and a half year period from June 2019, and not at all since November 2021; and
   4. Seen Dr Tawil four times in a three week period from 12 August 2021, but much less frequently since then, and not at all since May 2022.

Impairment consequences of the pre-existing condition

1. Mr Ajmaya acknowledged that he experienced neck and back pain before the accident, but says that the pain was intermittent rather than constant, and that the condition was manageable (with chiropractic treatment). In my view, this is consistent with the clinical records I have summarised above.
2. Mr Ajmaya also says that he was able to perform his work and activities of daily living, and was content with both his personal and professional life.
3. Mr Ajmaya says that being a barber has been his dream job since he was a child. After completing high school in Syria, he worked as a barber. After arriving in Australia, he completed a Certificate III in barbering. In 2021, he and his brother opened the London Base Barbershop in Williamstown. Mr Ajmaya says that he worked long hours - up to 10 or 12 hours a day - seven days a week, to make the business successful. He describes it as his "baby".
4. Outside of work, Mr Ajmaya would swim up to five days a week. He would also go to the gym regularly.
5. Mr Ajmaya impressed me as an honest witness. This was evidenced by the fact that he frequently made candid concessions that he could not remember aspects of his prior medical history that were recorded in the clinical notes, while accepting that those notes were accurate. The defendant agreed, but submitted that this made Mr Ajmaya an unreliable witness, and that I should primarily rely on the clinical notes for his medical history. I accept that.
6. Nevertheless, there is no evidence in those records (or elsewhere) to contradict Mr Ajmaya's testimony about what he was able to do pre-accident; and I do not find his testimony to be inherently implausible. In these circumstances, I find that prior to the accident his condition did not cause him any discernible impairment. This is an extremely significant point: however much Mr Ajmaya may have sought out treatment for his spine condition, it did not cause him any loss of body function.

The motor vehicle accident injury and treatment

1. There is no dispute that the accident caused, at the very least, transient aggravation of the pre-existing condition.[26] The issue is whether the aggravation was more significant and enduring than that.
2. Mr Ajmaya reports that the pain has changed from being intermittent, to constant. Sometimes the pain is moderate (meaning five out of 10 on a pain scale); at other times it is severe (meaning seven or eight out of 10).[27] He takes over the counter pain-medication (in addition to his prescribed medication). His sleep is also affected. His testimony on these points was neither challenged nor contradicted.
3. After the accident, there were a number of radiological investigations of Mr Ajmaya's spine:[28]
   1. According to one of the plaintiff's treating doctors, orthopaedic spine surgeon Mr John Choi, the CT and MRI scans of the cervical spine show "just minor degenerative change ... with some calcification and marginal osteophytes and kyphosis".[29] Mr Choi does not appear to have compared the post-accident scans with the pre-accident ones.
   2. One of the plaintiff's medico-legal experts, neurosurgeon Dr Hazem Akil, goes into some detail in describing the results of both the pre- and post-accident scans. It appears, from his analysis, that there are differences (although whether these are the result of the accident injury he does not say).[30]
   3. On the other hand, the defendant's medico-legal expert, neurosurgeon Dr Armin Drnda, says that longstanding degenerative changes to Mr Ajmaya's neck have not changed on any imaging that was performed on the day of the accident or after.[31] However, he also said that "if there was a perhaps mild interval progression [in the cervical spine], that would represent the natural progression of degenerative disease". [32] Dr Drnda does not explain why he would attribute any changes to the natural progression of a degenerative condition, rather than to aggravation caused by an injury.
4. In short, the scans provide very little radiological support for a change in the condition of Mr Ajmaya's spine following the accident. Nevertheless, one of the plaintiff's medico-legal experts, orthopaedic surgeon Dr Graeme Doig, diagnoses that Mr Ajmaya has soft-tissue injuries to the cervical spine and lower back, with aggravation of degenerative change;[33] and he attributes these at least in part to the accident.[34]
5. The treatment sought by Mr Ajmaya after the accident also provides some evidence that the condition of his spine may have worsened, and continued to worsen:
   1. He saw Dr Naim three times shortly after the accident complaining of neck pain,[35] but then not again until October 2024.[36]
   2. However, Mr Ajmaya re-engaged with his chiropractor, Dr Tawil, shortly after the accident, and between 6 December 2022 and 8 April 2025, had nearly 50 appointments with Dr Tawil, many at his own expense.[37]
   3. Since October 2024, Dr Naim has regularly prescribed Panadeine Forte and Naprosyn for Mr Ajmaya's neck pain.[38]
   4. At that time, Dr Naim also began to prescribe Circadin (melatonin) for sleep difficulties,[39] and currently prescribes Stilnox (zolpidem tartrate).[40]
6. Dr Tawil reports that Mr Ajmaya's treatments over the initial six to eight week period yielded a positive change, and that his range of neck motion returned to normal. Dr Tawil says that the recent treatment has been more on the basis of maintenance care, with left side neck pain leading to a reduction in neck motion.[41]
7. Medical examination confirms that Mr Ajmaya still has restrictions in the range of motion in his cervical spine, including extension and left lateral neck rotation; and in his lumbar spine.[42]

1. Mr Ajmaya reports that his pain impairs him in a number of ways, including:
   1. His work hours have significantly reduced. As already noted, prior to the accident, Mr Ajmaya was able to work long hours, seven days per week. The nature of his work requires Mr Ajmaya to stand for prolonged periods, look downwards, and elevate his arms, all of which aggravate his pain. He can now only work around four to five days a week for approximately five to six hours a day.[43] He is more exhausted at the end of a workday due to the pain he experiences throughout the day.[44]
   2. He used to go to the gym for cardio and weight training. Although Dr Naim had advised him, before the accident, against lifting heavy objects, he had previously been able to lift around 40 kilos at the gym, and can now only lift around 10.[45] For that reason he no longer goes to the gym, and also finds basic cardio activities, such as walking, harder because of his back pain.[46]
   3. He used to go swimming up to five days a week. He is still able to swim but finds it difficult due to his pain. He now swims one or two days a week,[47] as a form of treatment, but experiences swimming as a chore rather than a hobby.[48]
2. Mr Ajmaya's testimony about this impairment is not contradicted by any evidence and, as I have already noted, the defence accepts that Mr Ajmaya is an honest witness.
3. Although the expert reports are significantly based on Mr Ajmaya's self-report of his impairment, they do explain how his accident injury could have caused that impairment and consequential reduced work capacity:
   1. Dr Tawil explains that a barber is required to stand for prolonged and excessive periods of time with their head in a flexed position; that Mr Ajmaya has difficulty in maintaining that position; and that the modifications they have attempted were ineffective. [49]
   2. Dr Akil also notes that barbering involves standing for a prolonged period and flexing the neck in a single position, which aggravates Mr Ajmaya's symptoms.[50]
   3. Dr Doig accepts that Mr Ajmaya's musculoskeletal restrictions impacts on his ability to work for long periods as a barber.[51]
   4. Dr Drnda also seems to accept that Mr Ajmaya's neck and back pain (and obesity) restrict his work capacity, but attributes that restriction to the pre-existing condition rather than the accident injury.[52]
4. The plaintiff did not file a report from Dr Wong. The defendant submitted that this was a significant omission (without expressly seeking a Jones v Dunkel inference).[53] However, there is no evidence that Dr Wong has seen Mr Ajmaya since 19 June 2019. He is not, therefore, a current treating doctor. I would not have been satisfied, therefore, that I ought to draw a Jones v Dunkel inference from the failure to get a report from him.
5. Putting aside, for the moment, the question of whether Mr Ajmaya's reduced work capacity is a result of his pre-existing condition, or the accident injury, I find that Mr Ajmaya's work capacity as a barber has very significantly reduced since the accident. Specifically, his capacity has reduced from 10 to 12 hour days, seven days a week, to five to six hours, four to five days a week. That is a reduction in hours from 70 to 84 hours per week, to 20 to 30 hours per week.
6. Whatever I might think of the healthiness of Mr Ajmaya's preferred work/life balance, the fact is that his dream was to be able to run his barbershop business in that way. He is no longer able to do so. He is a relatively young man, and this impairment will therefore affect him for a long time.
7. I also find that this reduced work capacity means that Mr Ajmaya has suffered a pecuniary disadvantage. Of course, the defendant may be correct to submit that instead of barbering, Mr Ajmaya could focus on managerial and administrative tasks. Nevertheless, as a matter of common sense, such a significant reduction in hours worked would almost inevitably also lead to a reduction in income.
8. The plaintiff's experts provide evidence that the impairment is permanent:
   1. Dr Akil says that Mr Ajmaya's condition has stabilised, his prognosis is guarded, and the identified restrictions are likely to continue for the foreseeable future.[54]
   2. Dr Doig opines that the anticipated period of incapacity is permanent, and that the previously listed musculoskeletal restrictions will most likely have to remain permanently in place.[55]
   3. Dr Tawil suggested that Mr Ajmaya may need to make long term lifestyle changes, including a permanent reduction in his working hours, in order to keep his condition under control.[56]
   4. Dr Drnda takes a different view, but this seems largely to flow from his belief that Mr Ajmaya did not in fact suffer an accident injury.[57]
   5. I discuss this issue below. For the moment, however, I find that - whatever its cause may be - Mr Ajmaya's impairment is permanent.
9. In his first affidavit, Mr Ajmaya says he felt depressed as a result of the accident, experienced regular flashbacks, and had regressed mentally.[58] In September 2023, the plaintiff's medico-legal psychiatrist, Dr Nicholas Ingram, diagnosed Mr Ajmaya, as suffering from a major depressive disorder, as a secondary consequence of the accident injury.[59]
10. Since then, Mr Ajmaya's mental health seems to have improved. He has started seeing a psychologist who has helped him a lot and he has regained some confidence.[60] He has also been socialising more but notes that his mood remains varied and that he continues to experience bad moods at times.[61]
11. In March 2025, Dr Ingram said that Mr Ajmaya now only had mild residual symptoms of a chronic adjustment disorder with depressed mood.[62] The defence medico-legal psychiatrist, Dr Steven Aldard, made fundamentally the same diagnosis.[63] The experts also agreed that Mr Ajmaya's psychiatric prognosis was good. I accept that Mr Ajmaya suffered a psychological response to his accident injury, and the pain and impairment it caused him. However, this response has reduced in severity, and seems likely to continue to reduce. For that reason, I do not take it into account in determining whether Mr Ajmaya's impairment is serious.
12. I also note that Mr Ajmaya has retained the capacity to undertake many activities:
    1. Mr Ajmaya drives to work four to five days a week which takes between 55 minutes and an hour and a quarter hour each way.[64]
    2. Despite his difficulties in undertaking cardio activities, he is able to walk his dog on a daily basis for somewhere between 40 minutes and an hour and a half.[65]
    3. He is still able to swim one or two days a week.[66]
    4. He has been able to travel to Canada, twice, to visit his fiancée: once in August 2025 and again in December 2025.[67] However, Mr Ajmaya also said that the flights aggravated his back and neck pain and he was often unable to sleep due to the discomfort.[68]
13. Nevertheless, despite this retained capacity, there has been some reduction in Mr Ajmaya's capacity to engage in, and enjoy, the activities of daily living. On their own, I would not have described these impairments as serious. However, I consider that the reduction in work capacity is a very significant impairment, and that it is only made more significant when combined with the impairment in the activities of daily living. I am, therefore, satisfied that Mr Ajmaya's current impairment has consequences in relation to pain and suffering which may fairly be described as being at least very considerable.

Disentangling the accident injury from the pre-existing condition

1. Dr Akil was aware that Mr Ajmaya had a prior history of neck and back pain, caused by "an early spondylosis affecting his cervical and lumber region".[69] However, he noted that "the pain has increased significantly after the accident and become of a constant nature preventing him from doing many activities that he used to be able to do". Dr Akil considered the accident to be "a significant contributing factor to the presence of [Mr Ajmaya's] current condition".[70]
2. Similarly, Dr Naim opines that the "significant injuries caused by the MVA have definitely affected Mr Amjaya's ability to work effectively".[71]
3. Mr Choi is equivocal, saying only that he thinks "it is plausible that [Mr Ajmaya] has suffered some sort of musculoskeletal injury from the ... accident ... which may have aggravated his already degenerated cervical spine and may have sustained a little bit of whiplash that may explain his neck pain".[72]
4. Dr Doig is also equivocal, in that he says that the accident "appears to have resulted in the above conditions and at least, aggravated the pre-existing pathology". [73] However, Dr Doig's second report makes clear the basis on which he qualified his conclusion: "Unless there is available evidence to the contrary, the transport accident has resulted in soft-tissue injuries to [Mr Ajmaya's] neck and lower back, with most likely an aggravation of pre-existing degenerative change".[74]
5. Dr Doig's conclusions are based on his understanding that Mr Ajmaya was "virtually unrestricted" prior to the accident.[75] As noted above, the uncontradicted evidence of Mr Ajmaya is that he was indeed virtually unrestricted prior to the accident.
6. By contrast, Dr Drnda, states that Mr Ajmaya only had "transient aggravation to the pre-existing soft tissue issues of the neck", and that he "has persistent symptoms on the left side without any evidence on examination that there is any particular condition of his neck".[76] Dr Drnda also opines that any restrictions on Mr Ajmaya are related to "his pre-existing issues with his neck on the background of cervical spondylosis, which has developed more than one would expect for his age", and to Mr Ajmaya's weight, and not to the accident injury.[77]
7. However, Dr Drnda does not explain the basis on which he opines that Mr Ajmaya's current impairments are due to an unexpectedly rapid deterioration of his pre-existing degenerative condition, in circumstances where Mr Ajmaya was effectively unimpaired prior to the accident.
8. The defendant submitted that I should prefer the opinion of Dr Drnda, because - in terms of Mr Ajmaya's prior medical history - Dr Drnda's report was based both on Mr Ajmaya's self-report and on the full clinical record.[78] By contrast, the defendant submitted, the plaintiff's expert reports were based only on Mr Ajmaya's self-report in circumstances where, as I have already noted, Mr Ajmaya has limited independent recollection of his previous treatment.
9. The defendant's submission is only partly accurate. It is true that there is no evidence about what clinical information and documents were provided to Dr Akil.[79] However, Dr Naim would clearly have had his own clinical notes available to him when he prepared his report; and Dr Doig was provided with all the clinical records, including those from Dr Naim and Dr Tawil.[80] I do not, therefore, accept the grounds put forward by the defendant for preferring Dr Drnda's opinion.
10. On the other hand, the plaintiff submitted that I should reject Dr Drnda's opinion because he is "on his own" in not finding a causative relationship between the accident and Mr Ajmaya's impairment.[81] Again, I do not consider this to be a sufficient basis for rejecting Dr Drnda's opinion, particularly given the qualified or equivocal nature of some of the plaintiff's experts' opinions.
11. It seems to me that the key to disentangling the consequences of the accident injury from the pre-existing condition lies in three things:
    1. First, Dr Doig's qualification that unless there was evidence to the contrary, he felt comfortable in concluding that the accident aggravated the pre-existing condition.
    2. Second, the fact that it is not open to me, in the absence of evidence, to infer that a degenerative condition is progressive and that its symptoms will increase.[82]
    3. Third, the fact that the evidentiary burden is on the defendant to establish what the probable course of the plaintiff's pre-existing condition would have been had the accident not happened.[83]
12. In this case, there is no evidence as to what the probable course of the degenerative condition would have been had the accident not happened. Nor is there any evidence to suggest that the accident did not aggravate the pre-existing condition (indeed, the evidence suggests that it did).
13. In my view, this makes it safe for me to find that the accident injury aggravated Mr Ajmaya's pre-existing condition and that any changes in Mr Ajmaya's pre- and post-accident impairment can safely be regarded as consequences of his accident injury. I am therefore satisfied that the accident injury materially contributed to Mr Ajmaya's current impairment, by aggravating his pre-existing spine condition.

1. I therefore grant Mr Ajmaya leave to commence a proceeding for pain and suffering damages, for the spine injury he suffered in the motor vehicle accident on 13 November 2022.
2. I ask the parties to seek to agree about costs and provide a draft of consent orders. Failing that, the parties should ask my chambers to list the proceeding for a directions hearing.

[1] The parties tendered the following exhibits: Plaintiff's Amended Court Book (23 February 2026, P1); Defendant's Court Book (18 February 2026, D1; excluding pages 132 to 162). Mr Ajmaya swore affidavits on 11 July 2024, 6 March 2025 and 18 February 2026. The defendant also filed a helpful written Outline of Submissions (24 February 2026). References commencing "P" are to the plaintiff's court book; those commencing "D" are to the defendant's court book; and those commencing "T" are to the transcript of the hearing.

[2] The plaintiff tendered a short video of the car taken by his brother after the collision: Exhibit P2.

[3] See Particulars of Injury (6 March 2025). The spine can be treated as a single body function: TAC v Zepic (2013) 65 MVR 32. The plaintiff no longer relies on the injuries to his left and right upper limbs; or on paragraph (c) of the definition of serious injury.

[4] Evidence Act 2008, ss140(2)(b), (c); Findlay v TAC [2025] VSCA 126, [60]-[61].

[5] Humphries v Poljak [1992] VicRp 58; [1992] 2 VR 129, 140.

[6] Richards v Wylie [2000] VSCA 50; (2000) 1 VR 79.

[7] Petkovski v Galletti [1994] VicRp 32; [1994] VR 436, 444.

[8] Seckold v TAC [2025] VSCA 18, [58]; Palmer v TAC [2024] VSCA 254, [56]-[57]; and AG Staff Pty Ltd v Filipowicz [2012] VSCA 60, [31]-[35].

[9] Petkovski v Galletti [1994] VicRp 32; [1994] VR 436, 439.

[10] RJ Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51; (2000) 12 VR 386, 389 [5] (Winneke P).

[15] D 107. In cross-examination, Mr Ajmaya confirmed that he had experienced neck pain for two years before this: T 25.13-26.30.

[16] The radiologist's report for this scan is not in either court book.

[23] 21 June 2019, D 48-9; 18 September 2019, D 54; 12 October 2019, D 54-5; 17 October 2019, D 55; 10 November 2019, D 56-7; 6 April 2020, D 61-2; 17 August 2020, D 65-6; 16 July 2021, D 70; and 18 November 2021, D 76.

[25] The clinical notes, D 96-106, record seven treatments: 10 May 2022, 29 March 2022, 2 December 2021, 2 September 2021, 31 August 2021, 17 August 2021 and 12 August 2021. However, an extract of appointments, P 125-6, records additional treatments on 26 August 2021 (but not 31 August 2021), 6 January 2022, 21 April 2022 and 24 May 2022.

[26] See report of the defendant's expert, Dr Drnda, D 12 [3].

[29] P 58. To similar effect, see also Dr Doig, P 83.

[35] 16 November 2022, D 80; 21 November 2022, D 81; and 29 November 2022, D 81-2

[37] See extract of appointments, P 122-5.

[38] See clinical notes for 1 October 2024, D 86; 6 March 2025, D 88; 7 June 2025, D 90; 23 June 2025, D 91; 30 June 2025, D 92; 22 October 2025, D 93; and 28 January 2026, D 95.

[39] See clinical notes, 1 October 2024, D 86; 6 March 2025, D 88; 7 June 2025, D 90; 24 July 2025, D 92; and 22 October 2025, D 93.

[40] P 27 [4](e). See also clinical notes, 9 December 2025, D 94; and 28 January 2026, D 94-5. Mr Ajmaya complained to Dr Naim of tiredness numerous times before the accident; but these did not lead to any prescriptions of sleep medication, and Mr Ajmaya denied that he had any sleeping difficulties before the accident: T 46.11-13.

[42] See Dr Talik, P 61; Dr Doig, P 67; and Dr Drnda, D 9.

[53] [1959] HCA 8; (1959) 101 CLR 298.

[54] P 62 [Prognosis] and 64 [l] and [m].

[82] Petkovski v Galletti [1994] VicRp 32; [1994] VR 436, 439.

[83] RJ Gilbertsons Pty Ltd v Skorsis [2000] VSCA 51; (2000) 12 VR 386, 389 [5] (Winneke P).