Advice needed on consumer rights with particular reference to opticians

[strange_complex]

Two weeks ago, I had an eye test, and last week, I went to pick up my new specs.

I really like the way they look. But there's a problem: the prescription for the right lens is too weak.

Double trouble: I had the glasses made up by a different optician from the one who did the eye test.

My problem now is that I've been sold something which doesn't meet my needs, but I don't really know what rights or liabilities I have in this situation. The fault clearly lies with the lady who did the original eye test - but I only paid £5 to her for that privilege. Meanwhile, I spent a lot more money than that on having spectacles made up from her prescription, but the opticians who made up those spectacles did so on perfectly good faith, and I have no reason to believe they did anything wrong. Getting the £5 back for the original eye test won't really do much to off-set the cost of having the incorrect lens replaced, but it seems to me that I can hardly expect the second optician to absorb the cost of replacing it either.

Did I accept liability for this situation when I voluntarily chose to go to another optician to have the glasses made up? Or do I have any kind of protection against the consequences of having paid rather a lot of money for an incorrect lens? I surely can't be the only person who's ended up in this situation, but I haven't been able to bring up any very suitable advice by Googling. The best I could find was this, which is someone reporting the same situation - but I'm not at all clear that any of the people advising him(?) have any real expertise in the matter, or indeed whether their comments would apply in the UK.

Whatever happens, I really am going to have to get that lens changed. I've persevered, and given the new glasses five days to 'settle in', but the problem hasn't gone away, and it isn't something I can live with. I keep feeling as though my right eye has some kind of film over it, or my eyelid is drooping or something - anything which might explain the poor vision on that side. And I definitely wouldn't feel safe driving with the new glasses, either. When I drove to the supermarket on Sunday morning, I swapped back to my old glasses, and felt much happier. So if I am going to benefit from any of the money which I have spent on this new (much sexier) pair, I will in the end be forced to just suck it up and pay for a) a new eye-test and b) a new lens if I can't find any way to make anyone else pay for it for me.

And I don't know whether it makes any difference or not, but for the record, I am not hugely astonished that this is how matters have turned out. The lady who did the eye test said that my right eye had been being 'over-corrected' by my old glasses, and that this was something I wouldn't notice in terms of poor vision, as my eye could compensate for it. But the extent of the supposed over-correction was an entire diopter: from -4.5 in my old glasses to -3.5 in the new. I did think that was pretty odd, as my eyes have never done that before. My vision has been steadily getting worse and worse ever since I was 10 years old. Sometimes the rate of worsening has slowed, but it's never reversed itself.

But then again, I've never had an optician get a prescription wrong for me before, and I suppose I am starting to get into the age bracket now where presbyopia might start to kick in, and for all I know maybe that could manifest as a reduction in my myopia prescription? So I didn't try to challenge what she said. I just accepted it, and with enough confidence to take her prescription to another optician (who had much nicer frames) - the first time I've ever had glasses made up from a different optician than the one who did the prescription, in fact. Obviously, I wish I had spoken up now, but it can hardly be deemed my fault that I assumed a professional optician had got my prescription right, I suppose. The test all seemed very thorough and accurate when she was doing it.

Anyway, if anyone has been in this situation, or knows anything about what my rights are, please do comment. And if not, I guess I've just got more inconvenience and another hefty bill coming up...

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Comments

[major-clanger.livejournal.com]

(This is not legal advice. It's comment from a lawyer.)

This is a case of what's called consequential loss; as a result of one breach of contract, you've suffered loss or damage outside the scope of that original contract.

You had a contract with the first optician by which, in return for payment, she provided you with a service (an eye test). The service should have been an accurate prescription, and you didn't get that, so there was a breach of contract. On the face of it, you should thus get your £5 back.

But that breach of contract meant that you then spent much more on a wrongly-prepared pair of glasses. Is the first optician liable for this?

For the last century and a half the English courts have examined questions like this in light of a case called Hadley v Baxendale, which concerned the failure to deliver an important piece of mill equipment that led to a much bigger loss for the customer.

What the courts held in Hadley v Baxendale was that when two parties make a contract there are two sorts of consequential losses that both are deemed to be aware of:

1) Those losses that flow naturally from any breach, i.e. it would be obvious to anyone that a breach of the contract could or would cause such losses.

2) Those losses that were specifically in the contemplation of both parties when the contract was made.

In other words, if someone breaks a contract it is open to them to say "but I had no idea - and could not reasonably have imagined - that my breach would have the results it did." There are two responses to this: firstly, that actually such losses were foreseeable (i.e this is really situation 1 above), or secondly that you told the other side about what the consequences of breach would be.

In your case, I would think that it would be fairly obvious that if you prepare a prescription then it is going to be used as the basis for making glasses. However, you might have to check the fine print. It may be that the first optician's terms of sale exclude liability for the cost of glasses prepared by someone else on the basis of the prescription. But that's a fairly onerous term and I'd have thought it ought to have been drawn to your attention in advance if it applied.

Hmmmm. You may have a valid basis for getting your expenses for the new glasses. It might be worth seeing if there is a solicitor near you that does free consultations (a lot do) and asking for formal advice.

[strange-complex.livejournal.com]

Thank you enormously for this. I entirely take on board your disclaimer at the top, but it's very useful to know that this can be interpreted as an instance of a recognised form of dispute, with an established procedure for resolution.

I need to sort the situation out from a practical perspective anyway - i.e. have a new eye-test and get a new lens. So would I be right in assuming that as long as I keep all the relevant documents (the prescriptions, receipts etc), then I could pursue the issue of compensation after I have already had the incorrect lens replaced? After all, presumably I need to have proof that the original prescription really was wrong, in the form of a second opinion, before I can even claim back the £5 for the original eye test, let alone the cost of the new lens.