Lawyer says cola class action will be 'uphill battle'

JOSH MARTIN AND MICHAEL FOREMAN
Last updated 05:00 23/01/2014

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A planned class action against cola companies targeting New Zealand children with addictive sugary drinks will be an "uphill battle", a prominent class-action lawyer says.

Andrew Hooker is heading a representative class action against two New Zealand banks, but said he expected the case against leading cola brands would need to "jump through more than a few hoops" to succeed.

Unidentified Australian lawyers are calling for Kiwis suffering from poor health related to cola addiction to come forward to assist with legal action.

A newspaper notice this week sought "people whose families have suffered in terms of Type 2 diabetes, heart condition and/or premature death from becoming addicted to cola, from an early age".

Just Water International director Tony Falkenstein is the New Zealand contact for the representative action and was tasked with collecting information from health sufferers for the Australian legal firm set to file papers in court.

The notice said any proceeds from the court action would be divided among those affected.

But Australia-based Hooker said it would be a complex and lengthy process.

"If they're saying, ‘your coke was addictive and made my kids sick', then it falls alongside drug and pharmaceutical class actions like formaldehyde," he said

"You have to convince the judge that there are commonality between the case, that they all suffered the same result because of cola," he said.

Hooker said he knew little about the potential case specifics, but in his experience in a class action against a cruise company where all passengers on board the ship contracted typhoid, "that was hard enough", he said.

In New Zealand class actions were called representative actions, on the basis that one representative is the plaintiff again a defendant company's actions that had consequences for all.

New Zealand's largest cola brands were owned and produced by Frucor and Coca-Cola Amatil. Neither company would comment on the proposed case.

Coca-Cola Amatil's parent company in the United States, The Coca-Cola Company, has had multiple class actions brought against it, ranging from mislabelling artificial additives in its signature drink, to the health benefits of its VitaminWater. The VitaminWater case in the US has been ongoing since 2009.

Falkenstein said the lawyers contacted him early this month, but are not speaking to media until court papers were filed.

"I've written articles around no-sugar before and I guess you would say I have a personal crusade."

Controversy over the health risks associated with drinking too much Coke were raised last year when a coroner ruled an Invercargill mother who drank 10 litres a day died as a result.

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Natasha Harris, 30, died on February 25, 2010, from a cardiac arrest. Morrison Kent partner Elspeth Horner said a coroner ruling on its own may spark attention to the case, but could not be used as expert evidence.

"I think it gives some context . . . but in terms of it having any weight in a court, I don't think so," Horner said.

Lawyers would have to prove the commonality between all the cases, but in general "if there were 100 people and one was found not to have been affected, that would not knock over the case for the other 99," she said.

New Zealand Juice and Beverage Association head Kerry Tyack said the ACC system largely prevented class action cases.

- © Fairfax NZ News

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