Secondly, the claimant must be able to show to the courts that the tort was committed by an employee acting in the course of employment. The problem of which acts fall in the course of employment is approached by the courts as a question of fact. For example, in Rose v Plenty11, Plenty (a milkman), engaged Rose aged 13, to help him with his rounds and injured him by driving the milk float negligently , even though in Plenty's depot there was a notice saying "Children and young persons must not in any circumstances be employed by you in the performance of your duties". The employers were held vicariously liable because Plenty was doing what he was employed to do, delivering milk, even though he did it in an unauthorised mode he was still in the course of employment.
Moreover an employee on the time of the tort must be engaged on his master's business and not be acting on a "frolic of his own" In Storey v Ashton13, where a driver who was employed to deliver some wine and on the return journey after business hours he set of in a different direction from the defendant's premises and hurt the claimant from his negligent driving, the court held that he was not acting on the course of employment but on a "frolic of his own" (taking another direction than the one he was instructed to take), so the employer was not liable.
All these requirements mentioned above which are needed to be fulfilled for vicarious liability to be imposed, limit down the number of claims against an employer since not everyone can claim for any tort in vicarious liability. These mechanisms can be seen as a shield to prevent excessive claims which could push a company into financial difficulties. Moreover, there is also legislation passed on this field to protect business from excessive burdens. An employer who is held vicariously liable for his employees' torts may seek an indemnity from the employee under the Civil Liability (contribution)
Act 1978 and recover his losses. In Merrett v Babb14, an action was brought against an individual surveyor after the firm for which he had worked had ceased to trade. Also there are the cases like Shapland v Palmer15 where an employee and an employer were sued as co-defendants. These examples illustrate that if a business has gone to a point of having excessive burdens from vicarious liability claim, they have the right to sue the original wrongdoer who always remains in law as legally responsible for his torts.
In addition, after the Employers' Liability (Compulsory Insurance) Act 1969 all businesses have to be insured against liability for their employees. The companies therefore pay an annual amount of money that will cover them for the torts of their employees, so the insurance will pay. It can be seen concluded that vicarious liability is an essential part of the law of tort. It might seem to be "rough" on business at a first glance, but after considering all the social convenience arguments, it is clear that it promotes justice in general. Vicarious liability therefore can be considered as the best compromise that could have been reached in the needs of tort for compensation and the freedom of business to operate without excessive burdens.
1 "he who acts through another is deemed to act in person"
2 "every act which is done by a servant in the course of his duty is regarded as done by his master's orders, and consequently is the same as if it were the master's own act" per lord …….an explanation of the doctrine
3  AC 656,686
4 The Law of Torts, John G. Fleming, 9th Edition, Chapter 19, pg 409-410.
5 Clarendon Law series, Tort Law, Tony Weir pg95 Ch.6
6  5 Exch. At 350;155 ER at 153
7 " a servant is an agent who works under the supervision and direction of his employer; an independent contractor is one who is his own master" (Salmond and Heuston p.435)