37.—(1) Where a plaintiff has his damagees reduced under subsection (1) of section 34 on account of contributory negligence and the defendant subsequently brings an action against the plaintiff in respect of damage arising out of the same facts, the determination of liability and the apportionment of fault in the first action shall be binding between the parties in the second action.

(2) Subsection (1) of this section shall apply between two parties notwithstanding that one of them is party to the two actions in different capacities.