Anyway, I find that your paper may have drawn some false conclusions, but completely understandable for Canada. First, as a quasi socialist country, you want the government to protect the people. I am born American to Canadian parents, so I have spent some time in Canada visiting. I'm not trying to be insulting, but you have a bigger nanny state than I ever hope to live in. The industry is not going to let basic safety rules slide just because they have a waiver for their own negligence or gross negligence. "Come ski Whistler. We have more Helicopter crashes than anyone" or "Jump on the high speed quad at Red Mountain. We last serviced it over 10 years ago and it's still running great!" are not exactly ways to gain confidence or customers. Word of mouth is the best or worst advertising you can have, so ski areas are not going to skimp on basic safety just for giggles.
A dive operation can in fact do everything right and a customer can still trip and fall down the stairs and break a leg. That's why we have insurance and waivers. We are trying to protect ourselves from the customers' lack or preparation or ham handedness.
Sorry to have pushed a hot button.
This is personal to you. It isn't for me which allows a different perspective. Not necessarily better, just different. However it is personal in that I have given this particular issue a lot of thought so have some opinions. Apologies for being so long.
Your last paragraph describes the root of the problem perfectly:
You do everything right, customer trips and falls. Yet you feel that you need a waiver and insurance to protect yourself. Doing everything right is not enough.
In the perfect world you shouldn't need a waiver to protect yourself from a customer that trips and falls on a boat where you do everything right. Boats are inherently places where people trip and fall. It wasn't your fault so there was no negligence - customer shouldn't be able to successfully sue. However given the real world you need the waiver and insurance to protect yourself even from things that happen that are not your fault. Which creates a problem. If you get a waiver to protect yourself from things that are not your fault and the courts use that waiver to protect you then the waiver will also protect you from things that ARE your fault and the courts really don't like that so in those cases they find ways around the waiver. As these cases exist then lawyers will use the same arguments that were successful in getting around the waiver when it was your fault to try and get around the waivers in cases where the thing that happened is not your fault. Catch 22
I have to take issue with a couple of other things. Nanny state - perhaps, but has nothing to do with this one. The ski industry worldwide was reacting to a US court ruling in favour of a skier that had successfully sued a ski hill for a fall on the bunny hill. As I recall the skier tripped on an uncovered root and suffered very serious injuries. Sent everyone into a panic to make government step in and protect industry from the courts. Who is the nanny state here and who wanted protection - business wanted protection from the courts, not regular folks looking to the government for protection. We - the rest of the world - was reacting to the "US litigation as windfall lottery" system which attempts to use financial "punishment" to control behavior. Whereas the Canadian system by and large attempts to compensate for the actual damage done which limits litigation lottery’s.
The business in this particular case had advertised skiing as an absolutely safe activity on their hill. Stupid (in my view) and the result was correct as if they were advertising the sport as absolutely safe then they needed to be particularly attentive to hazards on their slopes - particularly on the bunny hill where beginners would not be able to avoid any obstacles. But for the assumption of risk in advertising the activity as completely safe AND the negligence in not marking or covering the obstacle on a bunny hill the result would have been completely different. You undertake a dangerous activity you accept the consequences. You advertise that the activity is not dangerous to attract people to your business then you also accept the consequences.
If you were to advertise diving on your boat as completely risk free - that would be equally as stupid and if you were to do so, and someone got hurt because you were negligent (say knowingly not replacing the non skid on a ladder) then you would and should be held responsible IMHO. I can't imagine you advertising that diving from the Spree is a completely safe activity. I can imagine someone else doing it however, in an effort to generate business.
Waivers are interesting from a legal/societal perspective. Courts US or Canada really, really don't like them, and they really don't like back of the ticket waivers in particular. They want them to be completely clear, people to sign them knowing what they are signing and even then they will look for just about any reason to throw them away if there truly is fault to be found and particularly if the fault is egregious. Ultimately I think this is a good thing. Place the risk of behavior by and large where it should be. You do something that puts someone else at risk you get the consequences.
IMHO and many courts opinions you should not be able to use a waiver to protect yourself from your own misdeeds. In simple terms most courts believe that, if you screw up a waiver should not protect you and if you REALLY screw up it will not protect you. I as a diver can't protect myself from you doing something wrong so why should signing a piece of paper shift that responsibility from you to me. Only you can control you and I often don't have the knowledge to even evaluate what you should or should not be doing. For example I as a diver boarding your boat have absolutely no idea if you have skipped changing the filters on your compressor this week because the cash flow is a bit tight. I rely on your past reputation and government regulation, and as you say the consequences of the media reporting on such a failure. But ultimately I just don't know. Only you know that - so why should signing a piece of paper absolve you of any damage to me that might result from that decision. If i get sick and have to go to hospital, take time off work etc. etc. as a result of your actions why should you be protected. The piece of paper doesn't get you out of the bad publicity such a failure brings so your business will suffer, but your business suffering does not make me right for your failure. This in its essentials is why courts will bend over backwards to get around a waiver.
The problem these days as I see it anyway is that the definition of "screwing up" is screwed up by courts that know that ultimately insurance companies will pay and plaintiffs that are sympathetic. i.e. the widow and 5 kids who just lost a husband v a faceless insurance company. Makes for bad law far too often, and particularly in jurisdictions where judges need to be popular. So a judge can find that you have been "negligent" for some pretty marginal behavior. The courts can be really creative in finding ways to get a result they want.
If you let people know that diving is dangerous, provide them with a waiver that reminds them that diving is dangerous and then have them knowingly sign such a waiver then perhaps you can avoid responsibility - even though you didn't replace the non skid. A tricky line to draw as diving is dangerous, boats are dangerous, maintenance on a working boat is hard to keep up with, but in this particular hypothetical case you knew that the non skid was not replaced, you would have known that without the non skid someone could fall and hurt themselves. Should the waiver protect you? Personally as a diver I vote no, I can't fix the boat and I didn't know that there was a problem when I jumped in so why should you be let off the hook when I fall coming back on board. I hired you to provide a boat that is working and is reasonably safe. You screwed up not me. You should be held responsible and a waiver should not let you off the hook. To do so would put the responsibility for the boats maintenance and safety on the wrong person.
Where this falls apart is when your failure has a very tenuous link to the damage. Allowing me to dive solo without checking my certification to do so. I die and someone sues. Personally I don't see how you should be held responsible, but I can also see some lawyer trying it on. If you had checked I would not have been diving solo and may or may not have died. Personally I doubt that such a case could be won, but in the US the potential payoff can be so high that it becomes worth trying. The argument being that the industry standard for liveaboard boats worldwide is that you only allow solo diving if the diver is certified. You didn't check and allowed an uncertified diver to dive beyond their capabilities. Personally I think this is BS, that is my responsibility - not yours - and within my control so the responsibility should be on me not you, but at least in the US a court might just rule against you. Doubt it, but anything is possible with the right judge and a sympathetic plaintiff. That together with litigation as lottery and you get cases that should not have even started.
Relying on "word of mouth" and the media to ensure that businesses provide a safe environment is not on. Far too many examples of this not working. A healthy fear of the consequences of screwing up seems much more immediate and as for the nanny state - the US provides much more in the way of consequences than any Canadian court does. That is much more in the US mythology than the reality.
With respect to "basic safety rules". The reality is that there are far too many business ignoring basic safety rules - irrespective of any waiver. I would just prefer that they not get away with such behavior by getting an unsuspecting public to sign a piece of paper. In this particular instance the results were immediate and significant on ski hills - not on basic stuff, but on things that they knew were safety issues and had caused injuries in the past but had also ignored - on both sides of the border. It was fascinating to watch. Simple things like safety nets protecting equipment parked near runs. Before, rare, after, everywhere. I suspect the insurance industry was the real driving force.
On the cost of litigation I couldn't agree more. I managed to get through my entire life without going to court as plaintiff or defendant. A number of times I could have been the plaintiff but knowing what I know about the justice system and seeing the damage it has done to several friends I have always just walked away. The justice system is far too expensive, takes such a personal toll, and takes far too long to come to a final decision. It just does not do very well as a dispute resolution system for society. There has to be a better way - we just have not found one and I have to say having spent some significant time working with some very bright people who were actively trying to find that better way - I would not hold my breath waiting for it to happen.
and can't be recovered either sounds good until you realize that there are cases where millions of dollars for pain and suffering and/or loss of enjoyment of life are perfectly appropriate. The tricky part is parsing the crap claims from the legitimate ones and nothing anyone here has said really goes very far towards addressing that issue.
