Understanding Makita v Sprowles: Why Every Access Report Must Meet These Standards in Australian Courts and Tribunals

Architects, developers, certifiers and access consultants in Australia frequently find their work tested in disputes under the Disability Discrimination Act 1992 (Cth), National Construction Code (NCC) compliance reviews, NDIS Specialist Disability Accommodation (SDA) assessments, or NCAT proceedings. When those disputes reach a hearing, the key evidence is almost always an expert access report. One landmark decision still governs whether that report will be admitted and carry weight: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305.

The facts of the case in plain English

Ms Sprowles slipped on concrete fire-escape stairs at her workplace in Gladesville. She sued her employer for failing to provide a safe means of access. The trial judge accepted expert evidence from a physicist that the stair treads were dangerously slippery. The NSW Court of Appeal overturned the verdict. The decisive reason? The expert’s report and testimony failed to explain how he reached his conclusions in a way the court could test.

Heydon JA (as he then was) delivered the leading judgment and laid down the now-famous requirements for admissible expert opinion evidence.

The seven Makita principles every access consultant must satisfy

For an expert report to be admissible under section 79 of the Evidence Act 1995 (NSW) and its equivalents elsewhere in Australia, we foresee that the following must be clear on the face of the report:

1. There is a recognised field of specialised knowledge (in our case: accessible built environment, Australian Standards AS 1428 series, NCC Performance Requirements, DDA, SDA Design Standard, MS 1184:2014 in Malaysia, etc.).
2. The witness has demonstrated expertise in a specific aspect of that field through identified training, study or experience.
3. The opinion is wholly or substantially based on that specialised knowledge.
4. All facts “observed” by the expert (site measurements, photographs, as-built drawings, level surveys) are identified and proved.
5. All assumed or accepted facts (client-provided documents, instructions, historical plans) are explicitly stated.
6. Those facts form a proper foundation for the opinion.
7. The report must demonstrate the intellectual process: exactly how the expert’s specialised knowledge is applied to the facts to produce the opinion.

In short, the court or tribunal must be able to follow the expert’s reasoning step by step without having to guess or cross-examine first.

Why Makita remains critical for disability access work in 2026

• DDA complaints, SDA funding disputes and NCC Performance Solution assessments are almost always determined on expert evidence.
• Tribunals and judges routinely strike out or give zero weight to “bare ipse dixit” reports that simply state “this is non-compliant” without measurements, photographs, calculations, or transparent reasoning.
• The Uniform Civil Procedure Rules 2005 (NSW) Schedule 7 Expert Witness Code of Conduct reinforces Makita. Our reports must also comply with that code.

How Sydney Access Consultants ensures every report is Makita-compliant

As Qualified Access Consultants (ACAA members) and registered architects with decades of experience, we build Makita compliance into every deliverable:

• Qualifications and relevant experience are stated, with specific references (e.g., Diploma of Access Consulting, contributions to AS 4299, SDA Design Standard projects, and current NCC Volumes 1 & 2).
• Every site visit is documented with dated photographs, digital inclinometer readings, laser measurements and level surveys.
• All assumptions are listed in a dedicated section (e.g., “Client confirms the provided DA drawings are as-built”).
• Opinions follow a clear structure: Relevant NCC Performance Requirement → Applicable Deemed-to-Satisfy Provisions or Performance Solution pathway → Measured facts → Application of specialised knowledge → Conclusion.
• Performance Solutions include full justification, reference to relevant Australian Standards and, where required, fire-engineer or structural input.

This approach has seen our reports accepted without challenge in the Supreme Court, L&EC, District Court, NCAT, and in SDA assessments and SDA administrative appeals.

Practical tips for architects and developers

1. Brief your access consultant with the same care you would brief counsel.
2. Provide complete as-built documentation and confirm assumptions in writing.
3. Insist on a draft report that you can review for factual accuracy before finalisation (never for opinion).
4. Choose a consultant who routinely gives evidence. Their reports are written with the witness box in mind.

In an era of increasing enforcement of accessibility obligations — from NDIS SDA rollout in NSW and Perth to anticipated stronger PwD Act enforcement in Malaysia — a robust, Makita-compliant access report is not a cost; it is the strongest insurance against costly appeals and overturned approvals.

At Sydney Access Consultants we prepare every audit, SDA design review and Performance Solution exactly to this standard — because we know the difference between a report that survives cross-examination and one that does not.