Crash victim's court award for surrogacy fees believed to be a 1st in Canada

Six years ago, a head-on car crash in Surrey, B.C., left Mikaela Wilhelmson's bones and future shattered. 

A witness at the scene remembers her saying: "I don't want to die. I don't want to die." 

Since then, the young woman had been fighting for compensation. Recently she was awarded a $4-million settlement from the Insurance Corporation of British Columbia (ICBC), along with a precedent-setting $100,000 award to be used for the future cost of surrogacy because her massive injuries left her unable to bear children.

"That had never been done before in Canada," said Wilhelmson's lawyer Conrad Margolis.

B.C. Supreme Court Justice Neena Sharma considered everything in her ruling — from lost financial potential, to lost fertility in the case that pushes the limits on personal injury awards for the young woman's lost potential.

Several personal injury lawyers told the CBC they believe the award for future surrogacy is a first in Canada.

"I call her my miracle client," said Margolis.

Long efforts to negotiate with the defendant in the case, the ICBC, failed, and her compensation was decided in B.C. Supreme Court in late April.

Wilhelmson, who was a passenger in the back seat of the vehicle, was the lone survivor of the Aug. 13, 2011, crash that killed three people. 

Killed in the collision were Wilhelmson's fiancé, Jarrett Swackhamer, 21, who was in the front seat, Jovan Salapura, the driver of the car she was in, and the driver of the other vehicle, Jason Dumma.  

Dumma had been speeding and going the wrong way on the road for several kilometres. Witnesses called the RCMP, frantic about the wrong-way driver coming "like a missile" until the fatal impact. Dumma died at the scene, and toxicology reports later revealed there was cocaine in his system.

After five years of gruelling rehabilitation, Wilhelmson was able to walk, and became pregnant, but was unable to carry to term because of the damage to her spine and internal organs, when she was crushed in the crash.

"I don't know how I stay strong. It's just who I am," said Wilhelmson, now 27.

She still yearns to be a mother one day and hopes her case will help others who have been denied parenthood by catastrophe.

The judgment also allows compensation for pain and suffering at the top of the scale — an award of $367,000 — an amount capped by the Supreme Court of Canada and usually reserved for "catastrophic" cases involving quadriplegia or traumatic brain injury.

"The judge here said that the impact on this poor woman's life has been so total that there is no principle that prevents her from awarding the cap here. I think that's significant," said Kevin Gourlay, a Vancouver personal injury expert.

The court also allowed compensation for lost interdependency, the diminished capacity to remain in a long-term relationship with shared economic benefit, given that Wilhelmson suffers from pain, depression and infertility. 

Since the crash she's undergone some 20 surgeries and procedures, had to deal with the recovery from spinal and internal injuries and most recently — the loss of a child.

"The award of $325,000 I believe establishes a high-water mark in Canada," said Margolis.

Interdependency awards are not novel, but unusual, and more common in the past, when incomes were lower.

The ICBC is reviewing the decision, and has not decided whether to appeal the case.

Still, there's no amount of money that can bring back Wilhelmson's fiancé.

"He is still in my heart every day," she said of Swackhamer, her high school sweetheart. "I don't think I'll ever have a life without pain. I had to learn how to live life in pain."

In the court ruling, her family physician, Dr. Nicholas Shulson, described Wilhelmson as "a shattered vase that was able to be 'glued' back together after being dropped." 

Doctors thought Wilhelmson would be paralyzed after the accident, but she refused to "wither."

Long fight

After the accident, Wilhelmson was kept in a medically induced coma for four weeks and spent 39 days in acute care at Vancouver General Hospital where surgeons mended her ruptured bowel, fractured vertebrae and ribs.

Years later, she started a new relationship, and became pregnant.

But doctors advised her to terminate the pregnancy, because her spinal and abdominal injuries made birth too dangerous.

She was devastated.

"Ms. Wihelmson's life will be nothing like she or anyone else envisioned it would be before the accident," said Sharma in her judgment that described the young woman as "amazing."