Make this point form$-$ Sometimes a professional may be liable in tort but not in contract, or may be liable for breach of fiduciary duty without having been negligent. Other times, the professional may be liable in both contract and in tort, and also for breach of the fiduciary duty. A court will not award triple the damages; the plaintiff must choose. Does it matter whether the client sues for breach of contract, breach of fiduciary duty, or negligence?

The choice might be important. The facts or available evidence may fit into one cause of action better than another. The rules governing the time limits for bringing an action might make it advantageous to sue in one or the other$\mathrm{.}20$ As we saw in Case $5\mathrm{.}3,$ a client$$s own contributory negligence may be raised as a defence in a tort action. Any term of the contract that excludes or limits liability will be raised as a defence in a contract action$\mathrm{.}21$ As Case $5\mathrm{.}1$ also demonstrates, the problem can be avoided by alleging breach of contract, negligence, and breach of fiduciary duty causes of action, in the alternative$\mathrm{.}22$

The choice of cause of action might also affect the amount of damages awarded. The principles for determining the amount of damages are not exactly the same in contract as in tort$\mathrm{.}23$ In the case of breach of fiduciary duty, a defendant may be under a duty to account for any profit derived from the breach in addition to or as an alternative to damages. However, courts have said that higher damage awards should not be allowed merely because a claim is characterized as breach of fiduciary duty as opposed to breach of contract or tort$\mathrm{.}24$