Nanaimo woman awarded $100k for future surrogate in landmark case

By Spencer Sterritt
May 1, 2017 - 10:12am Updated: May 2, 2017 - 11:18am

Mikaela Wilhelmson and Jarrett Swackhamer before the incident which took his life and altered hers forever. According to court documents, they had serious plans to travel and then open an excavator business.Submitted/Cherie Paton

The remains of the car crash which claimed three lives in Surrey in 2011. Submitted photo/Cherie Paton

Mikaela Wilhelmson in hospital. She required more than 20 surgeries and her lawyer said physically and emotionally she'll never be the same. Submitted photo/Cherie Paton

NANAIMO — A precedent-setting ruling has closed the grueling six-year legal battle of a Nanaimo woman who lost her fiancee and friend in a devastating car crash.

Mikaela Wilhelmson was awarded $100,000 by the B.C. Supreme Court for the use of a surrogate in the future, since it's no longer safe for her to carry a baby to full-term. It was part of a larger nearly $4 million judgement with ICBC.

In the early morning hours of Aug. 13, 2011, Wilhelmson, 21 at the time, was the sole survivor of a high-speed crash in Surrey which killed her fiancee Jarrett Swackhamer, their friend Jovan Salapura and Jason Dumma, the driver of the oncoming car.

Wilhelmson nearly died herself, requiring 20 surgeries to fix internal ruptures, 13 broken ribs and a partially collapsed right lung.

Her lawyer Conrad Margolis said it's impossible for her to carry a child since “Her abdomen is now just held together with scar tissue...for Wilhelmson it would be extremely unsafe to try and carry a fetus to term, though she can get pregnant.”

The $100,000 award is precedent-setting because it's illegal to pay for a surrogate in Canada but it's not illegal to travel to the United States for one and a decision like this has never been made before in Canada.

“There was quite a contested battle in front of Madam Justice Sharma,” Margolis said. “ICBC took the position that because it's illegal to hire a surrogate in Canada, it would be a violation of public policy to contain any funding in the award to Mikaela to be used for that purpose.”

Wilhelmson was awarded $367,000 for pain and suffering, which Margolis said is the maximum amount allowed and is also precedent-setting.

Given the unique and catastrophic nature of Wilhelmson's injuries and loss, Margolis said it's unlikely the new precedent will be used often.

“It will be there for a precedent for any other unfortunate accident victim to turn to should they find themselves in a similar situation. It's just a terrible tragedy and as Wilhelmson has said, the one good thing maybe that will come of it is that her court award might be of value to others who are victims of bad driving and end up seriously injured.”

Though the legal battle is over, Margolis said it doesn't mean the trauma is fully in the rearview mirror for Wilhelmson.

“It's been a horrible and gutwrenching fight for (her), not only to live through the accident initially but to have some semblance of normality to her life and to restore a reasonable level of function.”

ICBC have several weeks to appeal the decision, so the landmark aspect of the case may not be final.

The full decision can be found online.

 

[email protected]

On Twitter: @spencer_sterrit

Staying calm and being prepared helps four men in forest rescue south of Nanaimo